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Full text of "Second Report Workers' Compensation Appeals Tribunal 1986-1987"

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Workers' Compensation 

Appeals Tribunal 



Tribunal d'appel 

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1986-1987 



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Digitized by the Internet Archive 

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http://archive.org/details/secondreport8687onta 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

SECOND REPORT 



TABLE OF CONTENTS Page 

INTRODUCTION 1 

ACKNOWLEDGEMENTS 1 

THE CHAIRMAN'S OVERVIEW 

1 . The Adjudication Process 1 

2. The Tripartite Feature 1 

3. The Decisions 2 

4. The Issue Overload 2 

5. The Tribunal's Management and the Pre-Hearing Caseload 4 

6. The Post-Hearing Delays 4 

7. The Leading Case Strategy on Permanent Pension Appeals 4 

8. The Tribunal's Overall Performance 5 



THE DETAILED REPORT 

A. THE REPORTING PERIOD 6 

B. CHANGES IN THE ROSTER OF MEMBERS 6 

C. THE RELATIONSHIP WITH THE BOARD 6 

1. Introduction 6 

2. The Concern is Mutual 7 

3 . The Tribunal's View of the Relationship 7 

4. The Line Between the Board's Business and the Tribunal's Business — Section 86g(2) 8 

5. How the Board Sees the Relationship — the Application of 86n 10 

6. Who Has the Ultimate Say 12 

7. The Tribunal Chairman's Role as Member of the WCB Board of Directors 12 

D. THE RELATIONSHIP WITH THE GOVERNMENT 14 

E. THE RELATIONSHIP WITH THE OMBUDSMAN 14 
E THE SIX-MONTH TURNAROUND GOAL REVISITED AGAIN 1 4 
G. THE TRIPARTITE FEATURE — A PROBLEM 15 

H. OPERATIONAL ASPECTS 16 

1. Introduction 16 

2. Administrative Highlights 16 

(a) The Computer 16 

(b) The Committee System 17 

(c) Staffing 17 

(d) No-Smoking Policy 17 



ni 



3. The Tribunal Counsel Office 18 

(a) The Controversy Recedes 18 

(b) Cross-Questioning of Witnesses 18 

(c) General Duties 18 

(d) The Future 18 

4. Case Direction Panels and Instruction Panels 18 

5. Outreach and Training 19 

6. Scheduling 20 

7. Out-of-Toronto Hearings 20 

8. Maintaining Uniform Standards and Consistency in Tribunal Decisions 20 

9. Medical Evidence 21 

(a) Medical Assessors and Medical Counsellors 21 

(b) Appointment of Medical Assessor 22 

10. Caseload Performance 22 

(a) Definition of Terms 22 

(b) The Pre-Hearing Stage 22 

(c) The Post-Hearing Backlog Problem 23 

(d) The Incoming Caseload 25 

(e) The Tribunal's Production 26 

11. Decision 915 26 

12. The Library 26 

13. Publications 27 

14. French-Language Services/Training 28 

15. Representation at Hearings 28 
I. THE TRIBUNAL'S RECONSIDERATION POWER — THEORY AND PROCEDURE 28 
J. 1986 CHALLENGES REVIEWED 20 
K. FINANCIAL STATEMENTS 30 



APPENDICES 

A. TRIBUNAL MEMBERS (GREEN) A-1 

B. MEMORANDUM OF UNDERSTANDING (YELLOW) B-1 

C. WEEKLY WORKLOAD ANALYSIS FOR WEEK ENDING OCTOBER 2, 1987 (BLUE) C- 1 

D. GRAPH OF INPUT AND OUTPUT TRENDS (ORANGE) Dl 

E. INCOMING CASELOAD STATISTICS (GREY) El 

F. PRODUCTION STATISTICS (RED) F-1 

G. PROFILE OF REPRESENTATION (PURPLE) Gl 
H. FINANCIAL STATEMENTS (BROWN) HI 



INTRODUCTION 

The Workers' Compensation Appeals Tribunal is a tripartite tribunal established by statute in October 1985, to 
hear and determine appeals from decisions of the Ontario Workers' Compensation Board. It is an independent 
tribunal separate and apart from the Board itself. I am its first, and present. Chairman. 

This is my second report since assuming the position of Chairman. In it I record the Tribunal's progress in its 
second year of existence (from October 1 , 1986, to September 30, 1987), and report on matters which, in my view, 
will be of special interest or concern to one or more of the Tribunal's constituencies. 

The report is the Chairman's report and not the institution's. By that I mean, particularly, that I have not sought 
my colleagues' explicit approval for the subjective content of the report. I do believe that the opinions in the report 
will be found, for the most part, to be generally shared by the members of the Tribunal and where I have particular 
reason not to be confident on that score I have so indicated. Nevertheless, the views expressed here must not be 
taken as corporate views. 

It will be appreciated from the foregoing observation that this report, like my First Report, is not an "annual 
report" in the normal institutional tradition of such reports. It serves, in part, as the Tribunal's annual report in the 
traditional sense as it contains the objective information common to such reports. But it is also the Chairman's 
personal report to the Minister of Labour and to the Tribunal's various constituencies, mandated, I believe, by the 
fact that the major responsibility for the creation and operation of the institution is assigned by the legislation to 
the Chairman personally and not to the Tribunal as such. 

ACKNOWLEDGEMENTS 

The Tribunal's achievements in its second year are attributable once again to the commitment and talent of the 
Tribunal's extraordinary collection of members and staff. The consistent quality of the Tribunal's decisions 
evidence the especially strong contribution of the Tribunal's Vice-Chairs and employer and worker Members. I 
remain particularly deeply indebted to my Alternate Chairman, James R. Thomas, who continues to be my partner 
in this enterprise. 



THE CHAIRMAN'S OVERVIEW 



1. The Adjudication Process 



During its second year, the Tribunal has continued to provide an adjudication process that in my opinion is fair, 
effective and appropriate. The process is sufficiently structured and controlled to permit the serious business 
typically confronted in Tribunal appeals to be dealt with seriously, and efficiently. It is not, however, dominated by 
its rules and is not found by most participants to be intimidating. As direct experiences with the Tribunal have 
deepened and broadened, early fears about legalistic tendencies in the Tribunal's procedures appear to have 
receded. 

2. The Tripartite Feature 

My colleagues and I are particularly proud of the Tribunal's success in taking full advantage of its tripartite 
character and making that aspect of its design a truly viable and valuable feature. One hallmark of this success has 
been the remarkably high percentage of unanimous decisions. However, because unanimous decisions are an 
infrequent phenomenon in the labour relations field — the only place where worker and employer communities 
have previously experienced a tripartite process — the worker and employer communities tend to regard the high 

1 



proportion of unanimous Tribunal decisions as evidence of some failure on the part of "their" representatives. 
This attitude is pressuring worker and employer members towards a more traditional partisan role and thus 
threatening the true effectiveness of the tripartite concept. It is, in my view, very important that the worker and 
employer communities come to a more sophisticated understanding of the representative members' role in the 
Tribunal's decision-making process. 

This problem is examined at greater length in The Detailed Report which follows this Overview. 

3. The Decisions 

The Tribunal's written decisions are clear, intelligible and complete, and the reasoning they contain is generally, 
in my view, sound. Disapprobation of the Tribunal's conclusions from one side or another is not uncommon but it 
is rare for the quality of its reasoning to be challenged. 

The body of Tribunal decisions — some 1300 in all as of September 30 — is, for the most part, internally 
coherent. With the various indices and other research aids the Tribunal provides, the cases are providing effective 
public access to the workers' compensation subject, generally, and are a source of authoritative information and 
direction about the Tribunal's concerns and interests. For the first time in Ontario, workers and employers and their 
representatives are being given the means of putting themselves on an even footing with the system's adjudicators in 
terms of understanding in the preparation of their cases the true issues. 

The publication of the Tribunal's reasoned decisions is also creating an adjudication environment which 
promotes like treatment of like cases and allows for inconsistencies between cases to be identified and challenged by 
both worker and employer representatives and by the Tribunal itself. The process of comparing the decision 
analysis in one fact situation with that in another is promoting an increasingly more complete understanding of 
major issues. 

It seems likely, as well, that the Tribunal's decisions are contributing to an enhanced understanding and a more 
informed and rational discussion of workers' compensation issues generally, not only within the Tribunal and in the 
worker and employer communities, but also within government, amongst legislators and at the Board itself. The 
reasoned nature of the decisions challenges others to respond in kind, and provides concrete, detailed information 
on which discussion and debate may focus. 

4. The Issue Overload 

The most significant feature of the Tribunal's experience during these first two years of its existence has been the 
pervasive issue overload with which it has had to grapple as a result of its position as a brand new adjudicative 
tribunal in an operationally mature but jurisprudence-bereft field of law. 

The following is a partial list of the seminal issues of first impression which the Tribunal has had to address 
during this period. 

There were — and continue to be — a large number of what might be characterized as threshold issues. For 
instance, what is the nature of an "appeal" as the term is used in the Act with respect to the Appeals Tribunal? 
What are the limits of the Tribunal's jurisdiction? (A question that has had to be faced time and time again and 
continues to be faced as the parade of novel fact situations passes in review.) What powers does the Tribunal have to 
set the issue agenda in various situations? What should determine what the issue agenda is to be? What is the 
standard of proof and what does it mean? How does the statutory benefit-of-doubt work? What is the effect of the 
presumption in section 3(3)? What are the standards of review to be applied to the various categories of Board 
decisions? What are the limits to the Tribunal's powers of investigation? What policy should be applied to the 
question of medical evidence? Is deference, as distinguished from merely respect, owed to the Board medical staff's 
opinions — to the Board's vocational rehabilitation experts' opinions? What constitutes sufficient medical 
evidence in various circumstances and when and under what procedure should the Tribunal be obtaining additional 
evidence? What is the status of Board policies and guidelines? Is the Tribunal authorized — obligated — to review 
them and, if so, against what criteria? How can the Tribunal's obligations and powers under section 15 be 
reconciled with the Board's privileges and powers? What criteria should govern the Tribunal's decisions in leave-to- 
appeal applications? In section 21 Applications? In section 77 Applications? 

And then there are the operational issues: What is chronic pain? Does it exist? Is it compensable? What evidence 
is sufficient to support a chronic pain conclusion? How can a genuine case be distinguished from malingering? 
What might unreasonable motivation be evidenced by? Are all changes in interpretation retroactive? Fully? Why 
does the Board not comply with the court-approved definition of injury by accident? Is the Tribunal obligated to 
challenge that practice? When is an industrial disease not an industrial disease but a disablement? What does the 
Act mean by disablement? By industrial disease? By "accident"? By "maximal medical rehabilitation"? By 
"worker"? What does "arising out of employment" or "in the course of employment" mean — at the margins 
when applied in the infinitely variable fact situations which are found at this, the final stage of appeal? When is a 



worker not "available" for employment and when does it matter? What is "suitable" employment? What 
constitutes a "partial" disability as opposed to a "total" disability? What does section 45(1) mean — really? What 
is a rating schedule? What does the Act require in the way of a schedule? Does the Board's Schedule meet the 
requirements? What is fibrositis or fibromyalgia? Is it an organic or psychological condition? Is it compensable? 
What is the role of pre-existing conditions? What causes degenerative disc disease — might it be an industrial 
disease? Can stress-related disabilities be compensable? How are heart attacks at work to be treated? How can 
section 8 be made sense of? Are executive officers really personally liable for disabilities covered by the Act? Are 
dependants' causes of action under the Family Law Act caught by the section 8 prohibition against civil litigation? 
Does section 8 prohibit product-liability civil litigation by workers? Do workers have rights to rehabilitation 
services? 

I have gone to this length in describing some of the Tribunal's issue agenda in an effort to project a concrete 
impression of the Tribunal's issue-laden — issue-drenched — work environment. And yet the list represents only a 
portion of the parade of issues to be found in the decisions the Tribunal has issued to date and in the decisions which 
it is currently contemplating. 

Nor did the issues present themselves in an orderly, well-defined fashion, or come forward at a convenient rate. 
"Parade" is not the right metaphor. An "infestation" of issues captures the experience better. The Tribunal found 
one thousand cases waiting for it when it arrived on the scene, and every case was dripping with issues of first 
impression. Furthermore, the Tribunal was forced to approach these issues from scratch in a virtual vacuum of 
helpful precedent. It was not engaged in incremental adjustments to a mature body of law which is the normal lot of 
adjudicators in the common-law system. Rather than pruning a garden. Tribunal Members found themselves 
hacking paths and clearings in an uncharted forest. Often, recognizing the existence of an issue and defining its 
nature was as difficult as resolving it. 

The difficulty of the experience was exacerbated by the fact that, to a large extent, the Tribunal was on its own in 
this endeavour. Just as there was no extant body of law — no record of the Board's views on any issue — so there was 
no community of advocates experienced in dealing with the issues with which the Tribunal found itself confronted, 
and, as we have said, in many cases no advocates at all from one perspective or another. The advocate communities 
were experienced with the Board's application of the Act and with advocacy on the factual and medical issues in 
individual cases. But with respect to the multitude of subjects which the creation of the Tribunal put on the system's 
adjudication agenda for the first time, and the large number of Tribunal-related issues which the Tribunal's 
appearance had spawned, the advocate communities, like the Tribunal, were starting from scratch with nothing to 
work with. 

Furthermore, because of the relatively infrequent involvement of experienced advocates in the Tribunal's 
processes during this pioneering period — as contrasted to the Tribunal's constant involvement — the Tribunal has 
found itself having to be out in front of the advocacy communities on most issues. 

As was to be expected, particularly in a tripartite system, the process of issue identification and resolution in 
these circumstances has been a Tribunal pre-occupation which has consumed massive amounts of time and 
intellectual energy. It is a process which is particularly complicated by the fact that each new issue always arises in 
several cases at the same time. This circumstance has led to substantial inter-panel discussions and debate, and 
postponement of individual decisions while Tribunal consensus develops. The Decision No. 915 process, with a 
large number of cases being officially put on hold while the Tribunal went through a structured process of coming 
to an understanding about the issues in permanent pension appeals, was merely a formalized, high-profile version 
of a process that to some extent occurs informally — interstitially and sometimes insensibly — around virtually 
every significant new issue. 

The classic concept of panels of adjudicators as autonomous adjudicating entities operating wholly 
independently of one another, could not be sustained in these operating circumstances (if, indeed, it is a valid 
concept at all with respect to a multi-panel, specialized tribunal like the Appeals Tribunal). Panel autonomy and 
independence was held sacrosanct with respect to findings on factual and medical issues and with respect to the 
final decisions which each panel ultimately did reach on the generic issues. However, the process of trying to 
understand the dimensions and implications of generic questions of first impression and of exploring and of 
understanding the various possible answers to such questions was implicitly a process that had to be shared. Many 
of one's colleagues were struggling with the same questions at the same time, and from a system perspective, 
different answers to generic questions could be afforded at this stage only if they truly reflected a fully informed and 
thoroughly considered disagreement in principle. And even disagreements of that nature had then to be resolved in 
subsequent cases. 

Internal Tribunal disagreements on generic issues lead to different results in like fact situations depending simply 
on who happens to be assigned to the hearing panel. Such a situation cannot be tolerated for long. And, at least 
during this its own formative period, when the Tribunal was confronted with developing an understanding of the 



basic principles sufficient to give it a viable operating base, such disagreements had to be worked out within the 
Tribunal itself. 

In a paper of his entitled "The Administrative Tribunal: A View From the Inside",' Professor Paul Weiler, 
speaking from his experience as Chairman of the B.C. Labour Relations Board, observed that "a realistic 
appreciation of the administrative world must emphasize its internal diversity as much as its common themes" and 
that "any map of the administrative terrain which does not indicate that, is useless for legal navigation." 

From my experience as an inside witness of the Appeals Tribunal's operations I can testify to the truth of 
Professor's Weiler's observation. In my opinion, one of the most important influences on this Tribunal's "internal 
diversity" has been the overload of fundamental issues which the Tribunal has had to tackle and resolve during its 
formative period. 

5. The Tribunal's Management and the Pre-Hearing Caseload 

The Tribunal has continued to develop increasingly successful internal management systems. The processing of 
the Tribunal's work from receipt of appeals or applications to the completion of the hearing is now being handled 
from an administration point of view efficiently and appropriately. By the end of the reporting period, apart from 
the permanent pension cases which had been held pending Decision No. 915, there was no significant backlog at the 
pre-hearing and hearing stages. 

In dealing with the transitional backlog, the Tribunal has been assisted significantly by the fact that the incoming 
caseload did not materialize at the expected levels. There is no doubt we overestimated the capacity of our planned 
resources. As indicated in the First Report, we planned to hold hearings, and deal with applications which could be 
disposed of without a hearing, at a total monthly rate of 215 cases. However, experience has determined that with 
the resources now in place it is not realistically possible to do better than about 185 a month — and that, with 
everything and everybody working at an optimum level. The normal year-long average rate will be in the order of 
160 to 170 cases per month. Fortunately, this production level has proved adequate to deal with the actual incoming 
caseload and to dispense with the backlog at the pre-hearing and hearing stages. 

6. The Post-Hearing Delays 

While the Tribunal is in good shape from a production perspective at the pre-hearing and hearing phases of its 
operation, the same cannot be said for the post-hearing phase. The Tribunal has not been able in its second year to 
bring its backlog in i\\Q post-hearing, decision-making part of its process, under reasonable control. 

From a statistical perspective, the problem is not overwhelming. Since its inception, the Tribunal has made and 
released approximately 1 ,300 interim and final decisions and the average time between completion of the hearing 
and the issuing of those decisions was 3.7 months. However, in significant numbers of cases it has taken more than 
six months to issue decisions following completion of the hearing and a number of those have taken twelve months 
or more. At the end of the reporting period, there were 207 decisions in which the hearing has been completed for 
morethansixmonths without a decision issuing, and, of those, 47 have been waiting for over 12 months. Not all of 
these were ready-to-write or had been ready-to-write throughout that period. These numbers include cases held up 
by the need for post-hearing investigations or submissions (about 20% of all cases). A substantial proportion, 
however, do reflect a long delay after the ready-to-write point has been reached. 

The reasons for these delays will be examined fully in the report which appears below. They are, however, 
predominantly the inescapable consequence of the issue overload. After trying a number of strategies for bringing 
this problem under control which have not been successful, as of the end of the reporting period measures have been 
adopted which I believe provide grounds for confidence that the problem of excessively delayed decisions will be 
resolved in 1988. These measures are described in the detailed report which follows. 

7. The Leading Case Strategy on Permanent Pension Appeal 

In this overall assessment of the year's performance as viewed from the Chairman's special perspective, it is, of 
course, impossible to ignore the Tribunal's leading case strategy in respect of permanent pension appeals. This 
strategy was described at length in the First Report. It culminated on May 22, 1987, with the release of the 
Tribunal's Decision No. 915. 

The strategy took longer to accomplish than had been anticipated. At close quarters, the issues surrounding the 
provision of compensation benefits for permanent partial disabilities proved to be more complicated, controversial 
and difficult than even the Tribunal had supposed, at the time the need for this strategy was first recognized. But we 
have emerged from the process with a decision which provides an informed and viable basis for now proceeding to 
deal on the merits with individual appeals in these inherently complex and exceptionally difficult cases. 

I (1976), 26 U.T.L.J. 183 at p. 213, as quoted in an unpublished 1987 paper entitled Tripartite Adjudication by Faye W. Mclntosh-Janis. 



By the time Decision No. 915 appeared, approximately 500 permanent pension appeals were on hold pending its 
release. As of the end of the reporting period, the proceeding of these appeals was undergoing a further short delay 
while the Tribunal and the Board worked out their appropriate respective roles in these cases in the light of the 
Board's subsequent adoption of its own new policy on chronic pain. 

One very unsatisfactory consequence of the pension appeals leading case strategy was, of course, the delays in 
the processing of pension appeals. By the end of this reporting period, some of these cases will have been waiting on 
the Tribunal's books for almost two years and, in some of those cases, the appeal will have been filed with the 
previous Appeal Board some months before that. The 915 analysis also makes it clear that these cases will not 
typically be susceptible to quick processing even once they are reached. With the large number of such cases, it is 
apparent that it will still be several months before all of the existing backlog can be disposed of once the present 
issue with the Board is resolved. 

The delays in these cases are a particular manifestation of the general problem of delayed decisions referred to 
earlier. These cases fell to be decided at the point of an historic transition in the Ontario workers' compensation 
system and at the point of the creation and early development of a wholly new external appeals tribunal. Their 
disposition was delayed in order that the Tribunal might take the time needed to develop — in the midst of its own 
birthing process — an adequate understanding and a fully informed and properly considered position with respect 
to a set of issues that are truly unique in their sophistication, difficulty, contentiousness and significance. 

I am satisfied that, from the Tribunal's point of view, in the circumstances that confronted the Tribunal in 
October and November of 1985, the pensions appeal strategy was inescapable. The time and resources that strategy 
absorbed, and the delays in individual cases which it necessitated, were both unavoidable and justified. 

8. The Tribunal's Overall Performance 

T am personally content that, in the two years that have elapsed since the Appeals Tribunal came into existence, 
the Tribunal's mandate has been pursued appropriately and, measured against any reasonable criteria of progress, 
successfully. The delay in the decision-making process is the remaining major structural problem, and there are 
reasonable grounds for believing that that will be brought under control in the near future. 

It remains, of course, true, that the Tribunal's decisions are often controversial in the eyes of either the employer 
or worker communities. Employers, for instance, are generally unhappy with the Tribunal's chronic pain decisions, 
with the Tribunal's interpretation of the definition of "accident" , and often with the Tribunal's findings on factual 
and medical issues. Workers, on the other hand, are generally unhappy with the Tribunal's conclusions on the 
interpretation of section 45(1) and on the validity of the Rating Schedule, and they do not like the Tribunal's criteria 
for determining the issues in leave-to-appeal applications, its approach to the access-to-file and employer-ordered 
medical examination questions, and often its findings on factual and medical issues. 

Controversy has always been the hallmark of the workers' compensation field and it is not to be expected that an 
Appeals Tribunal that is doing its job would be immune. It is important, however, that the Tribunal eventually win 
the general respect of both employer and worker communities as an institution in which decisions are not governed 
by political or emotional considerations but are determined by an objective application of evidence governed by a 
true respect for the rule of law. It would, of course, benaivetosuggest that we have yet reached that point in the eyes 
of either community. In this emotionally-charged, politics-dominated field of controversy where the debunking of 
reasoned analysis has been the tradition, and consequences and outcomes long the only acknowledged measure of 
acceptability, it will take a considerable period of consistent and persistent performance to compel that kind of 
respect. 

I believe, however, that the Tribunal's performance to date in fact merits respect of that nature and I am confident 
that if we go on the way we have started, that goal will ultimately be achieved. 



THE DETAILED REPORT 
A. THE REPORTING PERIOD 

The report covers the second, twelve-month period of the Tribunal's existence — from October 1, 1986, to 
September 30, 1987. 

Reporting in respect of an institution's anniversary period is anomalous relative to the usual practice of reporting 
in respect of a fiscal period (April 1 to March 30). It was justified in the First Report for reasons having to do with 
the level of public interest in the new Tribunal's first 12 months of existence, and it was my intention to revert in this 
Second Report to fiscal-period reporting. That shift in the reporting period did not, however, prove either possible 
or desirable in the circumstances prevailing in March/ April of 1987 and in this report I have reverted again to 
reporting in respect of the Tribunal's anniversary period. 

B. CHANGES IN THE ROSTER OF MEMBERS 

In the reporting period, a number of changes occurred in the roster of Vice-Chairmen and employer and worker 
Members. In addition to the normal turnover that is to be expected in any 1 2-month period, there were a number of 
special developments. In the first place, we were able to fill the vacancy in the full-time worker Member 
complement reported in the First Report . Maurice Robillard was appointed in March 1 987 . He came to the Tribunal 
from his position as International Representative of the Amalgamated Clothing and Textile Workers' Union of 
America. His appointment finally provided us with a worker Member fluent in the French language. With Mr. 
Robillard's arrival, the Tribunal was able for the first time to field a complete French-language Hearing Panel. 

Also in March 1987, six, new, part-time Vice-Chairmen were appointed. These appointments became necessary 
because the utilization rate for part-time Vice-Chairmen turned out to be lower than expected, and the delays in the 
decision-making process had indicated additional decision-writing resources were required. 

In the 1986/87 Tribunal Budget, provision had been made for two additional full-time Vice-Chairmen positions. 
At budget time it had not been absolutely clear that two additional Vice-Chairmen would in fact be needed but the 
possibility was clearly apparent. Accordingly, budget provision was made on the understanding that we would 
continue to vet the situation and move to fill the positions only when the need became clear. One of these positions 
was filled in August 1987, and at the end of this reporting period a recommendation for the filling of the second 
position had been made and the appointment was pending. 

The filling of the first new position was the occasion for a major internal staff adjustment when Maureen Kenny, 
who had been the Counsel to the Chairman since the Tribunal's inception, accepted the appointment . By the end of 
the reporting period, her successor had not yet been selected. 

In Appendix A (Green) to this report, the reader will find a list of all Tribunal Vice-Chairmen and Members who 
served in that capacity during the reporting period. 

C. THE RELATIONSHIP WITH THE BOARD 

1. Introduction 

The establishment and maintenance of an appropriate relationship between the Tribunal and the Board is of 
central importance to the long-term interests of the workers' compensation system in Ontario. As two components 
of the same system, the Tribunal and Board must have a working relationship which effectively serves the goals and 
needs of the system. 

Since one of the fundamental characteristics of the system design is now a final appeal to an external, 
independent tribunal, the continued independence of the Appeals Tribunal must be one of the cornerstones of the 
relationship. 

That independence has to be maintained, however, in the context of a relationship which other aspects and needs 
of the system require to be highly co-operative at an operational level. Furthermore, in a system that is designed to 
be bureaucratic rather than litigious in nature, ways must be found to maintain this independence without fostering 
an adversarial environment. 

In my view, the working out of this relationship is perhaps the most difficult challenge faced by the Board and the 
Tribunal as they attempt to implement the 1985 amendments. 

In the 12 months covered by the reporting period, there have been a number of occasions for both the Board and 
the Tribunal to speak to the nature of this relationship, and continual interaction at an operational level has 



produced a growing set of precedents of co-operation and interaction. I believe this subject to be of sufficient 
importance to warrant devoting considerable space in this report to an account of that experience. 

2. Concern for the Relationship is Mutual 

It is important to recognise at the outset that, overall, the relationship between the Board and the Tribunal has 
been very positive throughout the Tribunal's short life. It is apparent that the Board has been as concerned as the 
Tribunal to see the specifics of this relationship developed as carefully and constructively as possible. 

3. The Tribunal's View of the Relationship 

In the Fall of 1986, the Board asked the Tribunal to reconsider the Tribunal's Decision No. 72 in the light of the 
subsequent Ontario Court of Appeal decision in Kuntz and Dagenais. This was the first such request the Tribunal 
had received and it required the Tribunal to address various aspects of the relationship between itself and the Board. 
The views expressed in that decision {Decision No. 72R) are of particular interest on this subject of the Tribunal- 
Board relationship. 

In the first place, the Tribunal's Hearing Panel in that case recognized the appropriateness of the Board's 
initiative in attempting to discover whether or not the Tribunal might change its mind on Decision No. 72 in light of 
the Court of Appeal decision, before the Board resorted to the section 86n review procedures. The proceedings 
under section 86n involve a large volunteer board of directors with a heavy management agenda and are inherently 
difficult and cumbersome. It was a correct approach, in the Tribunal's Panel's respectful view, for the Board to be 
concerned not to invoke that procedure wherever it can be properly avoided. Furthermore, the procedure of asking 
the Tribunal to reconsider its decision in the light of the Court of Appeal decision had the additional advantage of 
avoiding having the board of directors deal with the issue under its section 86n procedures without the benefit of the 
Appeals Tribunal's views as to the implications of the Court of Appeal decision. 

The 72R Panel accepted the worker community's submissions that the Board ought not to be seen to have any 
standing to cause a reconsideration of any Tribunal decision to be taken other than through the 86n procedures, but 
insisted on the Tribunal's right to invite participation from whomever might reasonably assist the Tribunal in its 
proceedings and to define the nature of that participation as it thinks helpful. It acknowledged the fact that in many 
cases the Tribunal would be unable to meet its own obligations without the Workers' Compensation Board 
providing it with information about the Board's policies and practices. 

The Panel noted a distinction between the Board participating in the Tribunal's proceedings for purposes of 
providing information, and the Board participating in those proceedings for the purpose of advocating a particular 
point of view with respect to issues of general policy or law. The worker community argued that the Board ought not 
to appear in an advocacy role before the Tribunal. Such a role for the Board was said to be incompatible with the 
principle of an independent Tribunal and also, given the section 86n review procedure, it put the Board in the 
position of advocating a point of view before the Tribunal in the circumstance where if it lost the argument at the 
Tribunal it might then review and itself decide the same issue on a section 86n review of the Tribunal's decision. In 
those circumstances, the Board would in effect be seen to be advocating a position in the first instance and 
adjudicating it in the second. 

The Panel was concerned, however, that if the Tribunal's hearing panels were prevented from hearing informed 
advocacy in support of the views of the Board's administrators on issues concerning general policy or law, the 
likelihood of a hearing panel in a particular case failing to understand some significant element of the Board's 
policy, guidelines or practices, or failing in its reasons to deal effectively with significant concerns of the Board's 
administrators would be greatly increased. It noted that Appeals Tribunal's decisions which were deficient in that 
respect presented a problem. In a particular case, such a decision would be substantially less helpful to the board of 
directors in its section 86n consideration of the issues than would otherwise be true, and from a broader perspective 
the board of directors general impression of the credibility and reliability of the Appeals Tribunal's views on such 
issues would be generally undermined by decisions deficient in that respect. For the section 86n process to work the 
way it was intended it was essential, in the Tribunal Panel's view, that with respect to issues concerning policy and 
general law, Tribunal decisions address the views and concerns of the Board's administrators in a knowledgeable 
and insightful manner. Since the Tribunal's ability to do that would be substantially hampered if it were prevented 
from hearing informed advocacy of those views, the Panel concluded that the Tribunal must consider itself free to 
continue to invite the Board to contribute to the Appeals Tribunal's hearings not only by providing information but 
also in appropriate cases by making advocacy-style submissions. 

While the 72R Panel found that the Board had no standing to cause the Tribunal to reconsider any decision (apart 
from the Board's 86n powers), it indicated that the Tribunal ought to issue a standing invitation to the Board to 
inform the Tribunal of what it regarded as obvious deficiencies in any of the Tribunal's published decisions. It 
would then be up to the Tribunal as to whether such information was so significant as to warrant the Tribunal itself 
initiating a review. 



Communications of that nature are now on occasion being received from the Board — usually by letter addressed 
to the Tribunal's General Counsel. They generally bring to the Counsel's attention matters of importance at the 
level of principle which the Board's staff believes from its reading of a decision the hearing panel in the case may 
have simply overlooked. These communications are reviewed by the General Counsel and by the Tribunal 
Chairman and if they are seen to raise appropriate matters of potential substance the Chairman will consult with 
the hearing panel who decided the case. If it appears to the Panel that the Board's point is substantial, then the 
parties to the proceedings will be sent a copy of the Board's letter and asked to make submissions on the question of 
whether the Board's concerns are such as to justify the Tribunal re-opening the decision and embarking on a 
reconsideration, having regard for the Tribunal's usual criteria in that respect (see below). To date, these 
communications from the Board have been infrequent and up to the end of the reporting period none had yet 
progressed to the point where they had in fact triggered a reconsideration in any particular case. 

In an effort to minimize the times when the Tribunal decides a case in ignorance of relevant information which 
the Board could have provided, and to ensure that its hearing panels understand the concerns and perspectives of 
the Board's staff when the panels are deciding an issue of generic interest, the Tribunal on its part engages in its own 
communication initiatives. When the potential implications of the case in that regard are understood prior to the 
hearing, the Board is invited to make submissions at the hearing, and when the implications are first appreciated at 
the post-hearing stage, the issue is then put to the Board's staff and they are invited to make post-hearing 
submissions to the hearing panel. Submissions at the latter stage are in writing. In either situation, the Tribunal's 
communications with the Board is in writing with copies of the letters to the parties in the case. The parties are 
provided with ample opportunity to respond to the Board's submissions. 

In addition to the above communications there is almost daily traffic between the Tribunal's General Counsel 
and his office and the Board's General Counsel and her office addressed both to the sorting out of the logistics of 
file transfers and the like, and to a sharing of developing concerns of a generic nature. A current instance of the 
latter type of exchange is the discussions which have been going on through that channel as to the implications of 
the Board's new chronic pain policy for the Tribunal's jurisdiction with respect to the pension appeals that had been 
on hold pending Decision No. 915, and as to the procedures the Board is proposing to adopt in respect to cases 
referred back for review under that new policy. 

With respect to the foregoing exchanges between the Board's and the Tribunal's staffs, it is important to 
appreciate that it has been explicitly understood from the beginning that the Tribunal is unable as an institution to 
make any agreement with the Board that is effective to bind any interest of the parties to any case. The Tribunal's 
powers to make decisions on substantive issues can, in the ordinary course, only be exercised by a hearing panel in 
the context of deciding a particular case. A hearing panel's powers in that respect cannot be constrained by any 
previous institutional agreements in respect of such issues between the Tribunal and the Board. 

A major determinant of the nature of the relationship between the Board and the Tribunal is the Tribunal's view 
as to the standard of review by which it is governed when it considers appeals from the Board's decisions. In many 
of its decisions the Tribunal has considered expressly the standard of review. For an appeal to be successful is it 
enough that a Tribunal hearing panel find the Board's decisions to be merely wrong? Or, are the Board's decisions 
owed some deference such, perhaps, as that showed generally to decisions of administrative tribunals by the courts? 
Might the Board's decisions have to be patently unreasonable before the Tribunal is entitled to interfere? 

To date, the Tribunal's decisions have generally held that deference is not owed; that the question the statute 
obligates the Tribunal to answer is, is the Board's decision correct — does it reflect a correct view of the facts in the 
case? Is it in accordance with the Act? It seems likely, however, that there are limits to this general rule and these 
continue to be explored. 

4. The Line between the Board's Business and the Tribunal's Business — Section 86g(2) 

The essential nature of the formal relationship hinges also, of course, to a significant degree, on how section 
86g(2) — the section which specifies the circumstances under which the Tribunal's right to intervene in the Board's 
decisions arises — is interpreted. The section reads as follows: 

86g(2) The Appeals Tribunal shall not hear, determine or dispose of an appeal from a decision, order or 
ruling of the Board unless the procedures established by the Board for consideration of issues respecting 
the matters mentioned in clause (l)(b) or (c) have been exhausted, and the Board has made a final 
decision, order or ruling thereon. 

This section's straightforward appearance belies the difficulty of its application. The Tribunal's Decision No. 3 is 
a case which provides a particularly illuminating example of that difficulty as well as a comprehensive exposition of 
the Tribunal's current approach to sorting out when it is appropriate for it to act and when it must refer matters 
back to the Board. 



The appropriate passages read as follows: 

At the outset of the hearing in this case, the employer questioned whether the Tribunal had 
the jurisdiction to hear and determine the issue as to whether there was entitlement for 
compensation for any injury arising out of a stroke. The point the employer made was that 
because the Workers' Compensation Board's Appeals Adjudicator had decided that the 
injury was caused by a disc problem, the Board never had occasion to consider what the 
effect would be on the worker's compensation rights if the injury were seen to be caused not 
by a disc problem but by a stroke. The employer argued, therefore, that this was a case where 
it could not be said that the Board's procedures for consideration of the issue of entitlement 
to compensation for injury caused by a stroke had been exhausted. Accordingly, under the 
terms of section 86g(2), the Appeals Tribunal was prohibited from considering that issue 
and should, instead, send it back to the Board for initial determination. 

The Appeals Tribunal's approach to its jurisdiction to set issues and its reading of the 
limitations imposed by section 86g(2) is set out in the Pension Assessment Appeals Leading 
Case Interim Report (section E). This Panel is satisfied that the principles and 
considerations in that decision are appropriate for consideration of the jurisdictional issues 
raised by the employer in this case. 

Section 86g(2) sets up limits to the Appeals Tribunal's jurisdiction which differ depending 
on how one chooses to characterize the issue or issues determined by an Appeals 
Adjudicator's decision. For example, the employer says that what the Appeals Adjudicator 
decided in this case was that the left arm injury was caused by the disc protrusion; the disc 
protrusion was caused by the accident, and, accordingly, compensation followed. One can, 
however, just as validly characterize the decision as: "the worker's disability resulted from a 
compensable accident". In the former case, the employer can argue, as he in fact does, that 
if on appeal to the Tribunal it now appears that the left-arm injury was not caused by the disc 
protrusion but by something else — in this case a stroke — it becomes apparent that the 
Board has not had an opportunity to consider with respect to this other medical cause 
whether it was caused by the accident, and if it was, whether it was compensable. 

In fact, if the employer's argument were to succeed in this respect, he would also have 
established that the Tribunal had no jurisdiction to determine whether a stroke had 
occurred. The stroke theory was not put forward at any point during the Board's procedures 

— it surfaced for the first time in this Appeal. Thus the stroke issue is also an issue in respect 
of which it can be said that the Board's procedures have not been exhausted, and which, 
therefore, should be referred to the Board for initial determination. 

To accept the employer's appreciation of the intent of section 86g(2) would be to set up the 
following scenario. The case is sent back to the Board on the stroke issue. The Board decides 
there was no stroke. The employer appeals. The Appeals Tribunal decides there was a stroke. 
The case is sent back for the Board to consider whether the stroke resulted from the accident 
(the Board would not have had reason to consider that issue because it had concluded there 
was no stroke). The Board says, no, the stroke did not result from the accident. The worker 
appeals. The Appeal Tribunal says, yes the stroke did result from the accident. The matter 
then goes back to the Board to decide whether a disability caused by a stroke resulting from 
an industrial accident is compensable. The Board says yes it is. The employer appeals. . . . 

This is a scenario from the theatre of the absurd and it comes to life once you accept that 
86g(2) is intended to refer to all the various sub-sets of issues underlying any major question. 

If, however, you characterize the issue decided by the Board in the broad terms previously 
mentioned — i.e., "Did the worker's disability result from a compensable accident?" — 
then the ping-pong process is avoided. Obviously, if that is the issue before us, on that issue 
the Board has exhausted its procedures and made a final decision. 

There is nothing in the wording of the section 86g(2) which requires, for purposes of the 
section, issues to be characterized in terms of the major substantive issue or the sets of sub- 
issues underlying the major issue. The choice appears to be open. 

It will appear from [the Leading Case Interim Report referred to above] that the Tribunal has 
opted for a practical approach to this question. In the ordinary course, in the interest of 
avoiding the ping-pong scenario, it will for the purposes of 86g(2) characterize the issue that 
had been before the Board in the broadest possible terms. However, where a sub-issue arises 

— often as a result of a Tribunal decision on some other issue — which is known to be novel 



or contentious and which the Board has clearly not had an opportunity to consider, the 
Appeals Tribunal will abide by the obvious spirit of 86g(2) and refer that issue back to the 
Board for prior determination. 

The Hst of the principles and considerations which should apply in determining the Tribunal's jurisdiction, 
which were set out in the Tribunal's Pension Assessment Appeals Leading Case Interim Report and referred to in 
the above passage, were included in Appendix E to the Tribunal's First Report. Since they are not too long, in the 
interest of completeness the especially pertinent portions are repeated here. 

1 1 . The general purpose of Section 86g(2) is clear. The legislature obviously wants to ensure 
that the WCB's special expertise, experience and policy perspective is allowed its usual 
and proper role before the Appeals Tribunal becomes involved. It is equally clear, 
however, that the legislature cannot be taken to have intended to require a multiplicity of 
proceedings to no practical purpose. 

12. Having regard to the foregoing factors, in selecting in any particular appeal the issues it 
will hear and determine the Appeals Tribunal intends to be governed by the following 
criteria: 

a) The parties' views as to the issues the Tribunal should address will be given great 
weight and only for substantial reasons will they not be followed. 

b) The set of issues that were explicitly or implicitly "present" in the adjudicator's 
decision are the starting point of any issue identification process, and the deletion or 
addition of issues from that basic set will require substantial reasons. 

c) In the interest of efficiency and speed, a case should not be complicated by the 
Tribunal's addition of issues unless there is a clear necessity. 

d) The Tribunal's bottom-line question in selecting issues is. What issues is it essential 
to consider in determining the true merits and justice of this case having proper 
regard for all competing interests? 

e) Where an issue arises and it is apparent that the WCB has special expertise, 
experience, or a policy perspective in respect of that issue, which in the proceedings 
to date have not had their appropriate play, the Tribunal must refer that issue back to 
the Board for determination in its usual processes. 

(0 In considering an application of the policy in the preceding paragraph, the Tribunal 
must also have appropriate regard for the competing policy of not prolonging the 
WCB-Appeals Tribunal decision-making process to no practical purpose. 

5. How the Board Sees the Relationship — the Application of 86n 

An issue of special interest concerning the relationship between the Tribunal and the Board is how the Board's 
own ongoing operations are in fact affected by decisions of the Tribunal which are inconsistent with the Board's 
existing policies or practices. The Board's position in this respect, as stated to the Legislature's Standing Committee 
on Resources Development and elsewhere is that the Board considers itself generally obligated to adopt the 
Tribunal's view of such matters unless it decides to review the decision under the provisions of section 86n. The 
Board has made it clear, however, that before it adopts a change in its policies or practices in accordance with a 
Tribunal decision (or before it embarks on an 86n review) there will usually be a period of review following receipt of 
the decision during which the Board will study the merits of the Tribunal's position. During this period of review, 
the Board's current practice or procedure will continue to be applied as before. 

The Board has established a staff committee with the responsibility for carefully reviewing all Tribunal decisions 
as they are received, and for recommending to the Board Chairman what steps, if any, should be taken in respect of 
each decision and in particular whether it is a candidate for referral to the board of directors for possible review 
under section 86n. This committee reports monthly. Its detailed report, which includes a summary and an analysis 
of each Tribunal decision issued in the month covered by the report, is routinely provided to each member of the 
board of directors. The distribution list includes, of course, the Chairman of the Appeals Tribunal who is an ex 
officio member of the board of directors. 

It is obvious from the staff committee's report that the committee not infrequently encounters Tribunal decisions 
which are inconsistent with established Board policy or practice — or with the Board's medical staff's established 
views — but in which there is sufficient potential merit that it is not possible for the committee to decide what 
recommendation to make to the Chairman on the 86n review issue without further study. Indeed, if the Tribunal is 
doing its job, a high percentage of the conflicting decisions should present the Board's staff with that type of 
problem. 



10 



This category of case is currently being referred to the appropriate section of the Board's organization for a 
policy review, and the decision as to what to recommend to the Chairman and the board of directors in respect of the 
issues in such cases is being postponed pending completion of that review. In the meantime, the specific decision is 
usually implemented. 

The practice of implementing the specific decision notwithstanding that the Board's staff has found within that 
decision a conflict with established Board policies or practices of sufficient importance to warrant a policy review, 
reflects the emerging Board view as to the restricted purposes to which the section 86n powers should be put. This is 
a view which is of very considerable general interest. 

The theory, as I understand it, is that the section 86n powers of review are to be involved only for the purpose of 
ultimately resolving differences of principle between the Tribunal and the Board and not for the purpose of 
ensuring that the Tribunal gets everything right in every individual case. 

This is a view as to the application of section 86n to which there appears to me to be no practical alternative when 
one considers the realities of the Tribunal-Board situation and the nature of the 86n process. 

In the first place, the Tribunal is likely to be issuing about 110 to 140 decisions a month, on average. These will be 
decided by hearing panels involving any one of approximately 20 different individual Vice-Chairs and about the 
same number of worker and employer Members respectively. Any of these decisions may contain an interpretation 
of first impression of some section of the Act or of some part of the Board's policies or Guidelines on which the 
Tribunal has not previously expressed a view. But one decision on a novel point does not establish a firm Tribunal 
position on a point of principle. And for the Board to invoke 86n every time a decision issues which is inconsistent 
with a board policy or with an established Board view of the meaning of the Act would involve the commitment of 
the board of directors' limited resources to the cumbersome 86n procedures many times a month and in respect of 
issues on which it will not yet be clear what the final Tribunal position is. 

Furthermore, issues of policy and general law which the 86n procedures are designed to address are frequently 
multi-dimensional issues. And it will be rare for one decision of the Tribunal to provide a sufficient indication of 
the Tribunal's position with respect to the various aspects of such an issue to make a board of directors' review of 
such a matter fruitful. 

In my view, the intervention by the board of directors, before the Tribunal's position on a new issue has been 
allowed to develop over the course of a number of decisions, is likely in the nature of things to be premature and, 
therefore, less useful and possibly disruptive. 

This view of the section 86n procedures as a means for the ultimate sorting out of intractable and well-defined 
differences concerning major matters of principle only, involves acceptance of the fact that while the Board's policy 
reviews are proceeding and the right moment for an 86n review is being allowed to develop, numbers of individual 
Tribunal decisions which ultimately may prove to be inconsistent with the position finally established through an 
86n process, will have been implemented. This appears to be a price that has to be paid if the process for resolving 
major differences between the Tribunal and the Board is to be allowed to proceed in a rational manner. What is to be 
done with these cases subsequently, is a question for the Board's policies concerning retroactivity or the collection 
of over-payments or, perhaps, for its S.I. E.F. policies. 

The point at which worker and employer representatives encounter the Board's attitude to Tribunal decisions in 
its most practical form is when they attempt to cite Tribunal decisions to Board claims adjudicators or Hearings 
Officers as precedents to be followed in current cases in which they are appearing. The Board's instructions to its 
adjudicators and to its Hearing Officers is that Tribunal decisions are not to be regarded by them as overriding 
existing Board policies. When the cases being cited are cases which have not been reviewed or which are not under 
review in 86n proceedings, this policy gives the appearance of the Board ignoring the precedent value of the 
Tribunal's decisions. However, it is apparent that this policy in fact reflects a practice dictated by administrative 
necessities which ultimately is consistent with the Board's stated commitment to being guided by Tribunal decisions 
if they are not reviewed under section 86n. 

Because of the restricted use to which section 86n can be put for the reasons referred to above, there will always be 
numbers of Tribunal decisions which have not been referred for a section 86n review but which are the subject of 
policy reviews by the Board — cases in which the Board has not accepted the policy implications of the Tribunal's 
decision but is in the midst of the sometimes-prolonged process of studying the issue with a view to deciding 
whether to recommend an 86n review or a change in Board policy. In these circumstances, acceptance by the Board 
of the proposition that decisions of the Tribunal which have not been subjected to the 86n processes are 
automatically precedents which claims adjudicators and Hearings Officers should follow, would effectively short- 
circuit the 86n process. 

It is apparent that the Act does not contemplate, and in the long run the system could not tolerate, a situation in 
which the Board habitually applied policies or interpretations of the Act which were inconsistent with established 
Tribunal positions which it had failed to review under the 86n process. Both the Board and the Tribunal agree with 

11 



that proposition. It is, however, a practical impossibility for the Board's and the Tribunal's respective positions on 
general law and policy questions to be continuously fully reconciled on a case-by-case basis. As the differences 
emerge, there must be a rational process of reconciliation which in the nature of things will often require some 
considerable time. In the end, such reconciliation can only be accommodated by one of three things: a Tribunal- 
initiated change in its position; an 86n review; or a board of directors' decision to adopt a change of policy or 
interpretation that will bring the Board's position into line with the Tribunal's position. 

6. Who Has the Ultimate Say? 

The question which will determine the most significant aspect of the Board — Tribunal relationship has, of 
course, yet to be addressed — the question of who ultimately has the last say. The answer to this question is to be 
found in the interpretation of section 86n(l), particularly of the following words: 

. . . the board of directors of the Board may in its discretion review and determine the issue 
of interpretation of the policy and general law of this Act and may direct the Appeals 
Tribunal to reconsider the matter in the light of the determination of the Board of Directors. 

The Tribunal is aware that views differ as to whether or not these words leave the Tribunal any room for further 
independent action once the board of directors has made its determination and issued its direction. The 
interpretation of this section in this respect falls to be determined, at least in the first instance, by the Appeals 
Tribunal itself. This will occur when the Tribunal receives a direction from the board of directors under this section. 
As of the end of the reporting period, no directions had yet been received. 

The Tribunal's decision as to the meaning of these words will be made by a hearing panel assigned to determine 
the effect of a board directive in a particular case. The decision will follow a hearing on the matter in which the 
worker and employer in the case will have been titled to make submissions. It is, therefore, clearly inappropriate for 
the Tribunal to come to a prior, institutional view on the matter. Furthermore, the meaning of these words can best 
be determined through their application to the particular circumstances of concrete cases. Accordingly, until 
occasions for such decisions arise, the system must continue to live with some uncertainty concerning the method 
by which intractable differences between the Tribunal and the Board are to be finally resolved. 

7. The Tribunal Chairman's Role as Member of the WCB Board of Directors 

The other significant element in the structuring of the Board-Tribunal relationship to which reference has so far 
not been made is the Statute's designation of the Tribunal Chairman as an ex officio, non-voting member of the 
Board's board of directors. 

This arrangement is perhaps unique in the annals of administrative law experience. It is especially peculiar in its 
deliberate creation of a role for the Tribunal Chairman which is inherently fraught with conflicts of interest. 

The Board's policies and its interpretations of the Act are, in all major matters, ultimately approved by the board 
of directors. Many of these decisions — all of them potentially — ultimately come to the Tribunal for review, and, in 
the natural order of things, often for a review conducted by a Tribunal hearing panel chaired personally by the 
Tribunal Chairman. 

While the Tribunal Chairman's role on the board of directors is that of a non-voting member, presumably the 
statute did not intend the role to be insubstantial. Accordingly, the statute must be seen to contemplate the Tribunal 
Chairman participating fully in the board's discussion of issues and having the same access to Board information as 
is available to any other member of the board of directors. 

By the end of the reporting period, the board of directors and I have had two years of experience with this unique 
relationship and some tentative conclusions about the viability and usefulness of the role may now be drawn. 
Necessarily, of course, the conclusions as they appear here reflect only my own impressions of how the arrangement 
has worked and of the complications and difficulties it has presented. 

Except for a small number of absences attributable to conflicting schedules, I have attended all of the board of 
directors' regular meetings since the new board met together for the first time. I have deliberately absented myself 
from the board hearings of the section 86(n) review of Decision No. 72 and from any discussion of the decisions 
which the board of directors is to make pursuant to that review. I have also absented myself from discussions of 
certain agenda items during regular meetings from time to time. Typically, these absences occurred with respect to 
items involving issues which I knew at the time were already under explicit consideration by the Tribunal in cases 
then before it. 

The occasions when I excused myself from the meetings while discussion was held on a particular agenda item 
occurred more frequently in the earlier months of the experience when nervousness about the conflict of interest 
aspect of the role was most acute. As the experience with the role developed, however, it became apparent that 
traditional responses to normal conflict concerns would effectively deprive the role of any substance. It would 
mean that the Chairman would be absent from the board meeting whenever his presence would be potentially 
significant. j2 



Accordingly, in the latter months of the reporting period I absented myself infrequently and participated in 
board discussions and accessed Board information with respect to many matters in respect of which normal criteria 
for identifying undesirable conflict situations might have suggested a different course. 

I have, to take one example, participated in board discussions of whether or not to exercise its right of review 
under section 86n in respect of particular Tribunal decisions. (In these discussions I have limited my contribution to 
the question of how the section is intended to be used from a systemic perspective and have refrained from 
defending the Tribunal's decision or discussing its merits.) 

It is apparent that when the Legislature caused the Workers' Compensation Act to designate the Appeals 
Tribunal Chairman as a member of the WCB's board of directors it deliberately put the Chairman into a position of 
inescapable conflict of interest as that concept has traditionally been understood. The Legislature cannot, 
therefore, have intended that the proprieties of the Chairman's activities in the role would be judged against 
traditional conflict-of-interest principles. Neither can it have intended that the normal principles concerning bias 
— as they pertain to adjudicators — apply to the Tribunal Chairman in his role of a hearing-panel chairman in a way 
that would rule out his sitting personally on appeals by reason of his position as a member of the WCB board of 
directors or because of his participation in previous discussions in the course of performing that role. There is 
nothing to indicate that the Legislature did not intend the Tribunal Chairman to be active in both roles. Indeed, the 
indication is clearly to the contrary. The Legislature must therefore not have intended that the nature of the one role 
would restrict and constrain the Chairman's activities in the other. 

There is no doubt that the statutory appointment of the Appeals Tribunal Chairman to the WCB board of 
directors plays hob with traditional ways of looking at things in our legal system. It would seem, however, that this 
is in fact what the statute intended. 

It is my own view that the Tribunal Chairman's position as a member of the board of directors has in fact turned 
out to constitute an essential link between the Board and the Tribunal. My participation in the discussions and 
deliberations of the board of directors on the full range of the Board's business has contributed to my 
understanding of the context in which the Tribunal's decisions are being made and has enhanced my ability to 
understand the system implications of issues the Tribunal is called upon to decide. This, in my view, is essential 
input to the body of background knowledge which the Appeals Tribunal must have if it is to fulfill its role as a 
specialized tribunal, in a field also occupied by the Board. 

The existence of this channel of information between the Tribunal and the Board is inherently worrisome from 
the point of view of the principle to which the Tribunal is otherwise committed — i.e. , that hearing panels are not to 
have information which has not been made available to the parties. It is, therefore, important to make the point in 
this regard that this channel of information is not being used, nor should it be used for the purpose of obtaining 
from the Board specific information about individual cases. The knowledge gained through this channel is of a 
general nature and if there is ever an occasion for such information to be used in a particular case, the Tribunal 
would have to ensure that the information was indeed shared with the parties in that case. The information, 
however, is no different in this regard than the information which the Tribunal Chairman and other panel members 
acquire in the ordinary course from their personal general reading and from their daily exposure to the evidence and 
submissions in the range of cases in which they are involved in the course of their regular activities. 

Of more subtle importance but not less significant are the opportunities the role provides for the Tribunal 
Chairman and the other members of the board of directors and the Board Chairman, President and other senior 
members of the Board's management to lay the foundations of personal confidence which are so helpful in the 
avoidance of misunderstandings in the relationship the statute has established between the Tribunal and the Board. 

The Tribunal Chairman's position on the WCB board of directors has also made the board meetings into a forum 
in which the Board-Tribunal relationship can be discussed and problems and misunderstandings cleared up before 
they become entrenched. Thus, when problems with the relationship do arise, they arise in circumstances where 
both parties have a clear picture of the other's position and the relationship is not endangered by mere 
misunderstandings. The Tribunal Chairman's presence at board meetings has also helped to enforce continuing 
awareness in the minds of both institutions of their respective roles as complimentary components of the same 
system. 

The danger inherent in the arrangement is, of course, obvious. It is that the Tribunal Chairman will be co-opted 
by his involvement in the business of the Board and by the personal relationships that such an association promotes, 
and that he, and thus the Tribunal, will thereby lose the capacity — or possibly only the thirst — for the 
independent and objective review of the Board's decisions which the Act contemplates. 

There are, however, two safeguards in this respect which, in my view, make the risk a reasonable one from a 
system perspective given the important advantages. The reference here is to the fact that the board of directors is a 
representative board with members representative of both the employer and worker communities (as well as of the 
public and the medical profession) and the Tribunal is a tripartite Tribunal with members representative of both 

13 



workers and employers. Thus the Tribunal Chairman's activities at the meetings of the board of directors are 
carried on under the supervision, as it were, of the employer and worker Members. And his activities and attitudes 
at the Tribunal are subject to the influence of a tripartite process quite capable of challenging a Chairman thought 
to be too much in the Board's pocket on any particular issue. 

The role is often difficult and there are obvious dangers. However, based on the experience to date, it is my 
opinion that the role has proven, on balance, to be a workable and important component of the total system design. 

D. THE RELATIONSHIP WITH THE GOVERNMENT 

As reported in the First Report, the Appeals Tribunal has been categorized by the Government as a Schedule I 
(anomalous) Agency. The relationship is governed by a Memorandum of Understanding between the Minister of 
Labour and the Chairman of the Tribunal which is approved by Management Board of Cabinet. At the end of the 
reporting period, this memorandum was still in the approval process, but at the time of writing, approval has been 
received. A copy of the agreement is enclosed as Appendix B (Yellow). 

E. THE RELATIONSHIP WITH THE OMBUDSMAN 

The Ontario Ombudsman has always been heavily involved with complaints concerning workers' compensation 
matters. His reports are acknowledged to have played an important role in the reform movement which culminated 
in the Bill 101 amendments to the Act. This Tribunal's relationship with the Ombudsman is, therefore, of special 
interest. 

Up to the end of the reporting period the Tribunal has been advised of 5 1 complaints received by the Ombudsman 
in respect of decisions of the Tribunal. The Ombudsman has reported in respect of 11 of these and has concluded in 
each case that the Tribunal's decision was not unreasonable. 

The working relationship between the two organizations has been marked by a high degree of co-operation 
combined with an open exchange of views. The Ombudsman's organization will be aware, however, that I continue 
to believe that the Ombudsman's review of the merits of Tribunal decisions — as distinguished from its procedures 
and process — is, from a system perspective, inappropriate, although — in the light of the results of the Ontario 
Labour Relations Board's recent court challenge — now, apparently, clearly within his statutory authority. 

E THE SIX-MONTH TURNAROUND GOAL REVISITED AGAIN 

At the time the Tribunal came into existence, I stated that it was the Tribunal's intention to work towards the goal 
of dealing with all but exceptional cases — from notice of appeal to the issuing of the decision — in not more than 
six months. In its Workers' Compensation Board Report dated November 1985, the Legislature's Standing 
Committee on Resources Development criticized that goal and recommended that it be reduced. In my first report, 
a year ago, that recommendation was addressed and I concluded that while for some categories of Tribunal cases a 
turnaround goal of less than six months was both desirable and practical, cases involving entitlement or quantum 
issues could not typically be dealt with appropriately in less than six months. Further experience now suggests that 
with respect to the latter category of cases even that assessment was unrealistic. 

The six-month cycle anticipated four months of pre-hearing preparatory work. Now, after 12 months of 
experience operating at or near full production, it is apparent that the four-month estimate for the pre-hearing 
phase of the Tribunal's work reflected an insufficient appreciation at the time, of what in fact would be required for 
all of the pre-hearing activities. The Tribunal's current experience indicates that a more reasonable estimate would 
be five to six months from the notice of appeal to the hearing date. 

Because this slippage in the anticipated turnaround time will be a matter of concern for many in the Tribunal's 
various constituencies, it is necessary to address the reasons for it in some detail. 

PREHEARING PROCESS — ENTITLEMENT AND QUANTUM CASES 

Content 

1 week intake processing at the Tribunal and 2 weeks to 
requisition and receive a photocopy of the full Board file. 

File review, issue identification. Case Description 
drafting, checking medical evidence, research of law, 
dealing with access to file question, etc. 

14 



Stage 


Time 


Intake Process: 


3 weeks 


Tribunal Counsel Office 


8 weeks 


Processing: 





Case Description Distribution: 2 weeks Case Description out to parties and case on hold to give 

parties or their representatives an opportunity to study it 
and make suggestions. 

Scheduling Process: (From receipt 3 weeks Contacting all interested parties and negotiating agreed 

in the scheduling department to date (telephone "tag" is a significant factor) or waiting 

settlement date) for parties to request a date. 

Usual period between settling the 6-8 weeks To accommodate representatives' schedules and to allow 

date of hearing and the date itself: for parties to prepare for hearing. 

The processing of cases through the Tribunal Counsel Office part of the cycle is under continuous review and it 
may ultimately prove possible to reduce the time by some margin. However, I believe that the times indicated above 
for each of the pre-hearing activities are not generally unreasonable allotments having regard to the nature of those 
activities. It is also to be noted that a significant portion of the total time allotted has been set with the convenience 
of the parties and their representatives in mind. 

In summary, while it is to be hoped that in the future the Tribunal will ultimately be able to reduce the pre-hearing 
cycle for entitlement and quantum cases to four or five months, the cycle is currently five to six months and, under 
prevailing circumstances, I believe that range to be both necessary and appropriate. 

With respect to the two-month turnaround goal in the post-hearing phase of the Tribunal's activities, this is the 
area of the Tribunal's production which, as explained in the Chairman's Overview (see above) and in the extensive 
report below, the Tribunal has yet to bring under control whether the two-month target is in fact generally realistic 
remains to be seen. 

Experience does indicate, however, that in complex cases involving issues of serious controversy, tripartite 
decision-making- cannot be accomplished as a regular rule in two months. In cases of that type, three to four 
months is a more realistic goal. Currently, at least, the proportion of cases which fall into that category is high. 
Thus at this point in time, even with the process under appropriate control, the Tribunal would find it difficult to 
meet the two-month goal in a general way. 

It is appreciated that the foregoing news is not what the Standing Committee and others want to hear. It is, 
however, the reality and must be reported as such. My colleagues and I continue to believe strongly that with respect 
to significant and difficult cases — a category which, as indicated, accounts currently for a high proportion of the 
Tribunal's caseload — it is not appropriate to treat speed of disposition as an overriding consideration. 

G. THE TRIPARTITE FEATURE — A PROBLEM 

As indicated in the Chairman's Overview, the Tribunal especially values its tripartite character and has strived to 
make that feature of its design work as effectively as possible. The Vice-Chairs, the employer and worker Members 
and I, all believe that effort to have been successful. The Tribunal's hearing and decision-making processes are 
carried on in an environment of mutual respect in which all points of view receive a careful hearing and considerable 
efforts are devoted to finding answers which accommodate the concerns of all members of a hearing panel. 

The latter effort, it must be noted, does not reflect a commitment to unanimity as a value in and of itself. The 
Tribunal has always recognized the inappropriateness of sacrificing the rights of employers or workers in a 
negotiation amongst panel members directed to achieving a unanimous decision. The effort typically directed 
towards resolving the concerns of all three members of the hearing panel reflects rather the group's confidence that 
if one of its members is deeply concerned by the decision favoured initially by the majority, then there is likely to be 
something at the bottom of that concern which from the system's perspective merits the whole group's careful 
attention. 

This genuine commitment to understanding and, if possible, resolving all members' concerns has contributed 
substantially to the length of the decision-making process but, in my view, has also played a prime role in ensuring 
the quality and relevance of the Tribunal's decision. 

It is that commitment which, in my opinion, explains the surprisingly low percentage of cases in which dissenting 
opinions have been registered. (The percentage appears still to be below 5%.) 

In a field as inherently contentious and emotion-laden as this one, the extremely high proportion of unanimous 
decisions is obviously remarkable. The problem is that it is so remarkable that it has led the worker and employer 
communities to question whether "their" members on the Tribunal are in fact doing the job they are supposed to be 
doing. That questioning is, in turn, pressuring the Tribunal's worker and employer Members to adopt more 
partisan postures. The communities' attitudes are thus threatening the true effectiveness of the tripartite design. 

What makes the design work — what motivates the careful listening and honest efforts to understand and resolve 

15 



other members' concerns — is the confidence that concerns expressed are genuine; that when a colleague disagrees 
it is because he, himself, or she, herself, honestly sees the thing differently. 

Were it to become apparent that a colleague's disagreements reflected mere advocacy or posturing for the 
purpose of manipulating panels towards preconceived partisan conclusions, or even if the environment were to 
change sufficiently so that one could no longer be confident that the concerns expressed by one's colleagues were 
necessarily genuine, then the responses to such concerns would, in their turn, become partisan and manipulative. 
Very shortly, neither of the representative members would be truly directing their minds to the actual merits of the 
issues, and shortly after that, the panel chairs would stop caring what their colleagues were saying. The caucus 
would thereby become nothing more than ritual, and the decision would be effectively made by the panel chair. At 
that point, the Tribunal's tripartite character will have gone the way of the tripartite character of most labour 
arbitration boards and become mainly a fa?ade. 

Both worker and employer communities — or at least their representative organizations — must appreciate the 
importance of the Tribunal members representative of their communities making decisions as they see them on 
their merits, without regard for the popular, partisan or political point of view. Having members with the courage 
and freedom to act in that manner is the only way that members representative of employers or workers will 
continue to play any meaningful role at the actual decision-making stage. 

Such communities and their organizations must also appreciate that it will be common for their representative 
members, acting in that manner, to reach conclusions on individual issues or cases which differ from the views of 
their respective communities. The Tribunal's process of adjudication and the detailed bi-partisan information and 
arguments to which an adjudicator who is honestly considering a case is subjected in the course of such process will 
frequently lead to that result. 

To attribute the high proportion of unanimous decisions to the representative members being co-opted by their 
association with the Tribunal, or to their not knowing enough or not being skilled enough at persuading their 
colleagues on the panel to their community's point of view and not caring enough to dissent, is to question the 
integrity of the representative members or to misunderstand their essential role. 

The employer and worker Members of the Tribunal are, without exception, people with highly relevant and 
senior experience of the workplace. A perusal of the brief resumes in Appendix A will confirm that fact. To a 
dispassionate observer, the fact that such a group of individuals are all found regularly signing unanimous decisions 
that run contrary to the instinctive views of their respective communities (views they themselves would have held 
before being involved as adjudicators in the cases in question) would presumably suggest that exposure to bi- 
partisan arguments, access to all of the actual evidence, and the acceptance of a duty to try to view the issues 
objectively, very often lead men and women of integrity to conclusions opposite to what a partisan point of view 
would suggest must be correct. 

It would be helpful to the work of the Tribunal if the worker and employer communities were more inclined to see 
unanimous decisions that run contrary to their interests, as evidence that there may be more to the other side of the 
argument than they have been prepared to concede, rather than as reasons for denigrating the motives, 
commitment or abilities of the Tribunal's representative members. 

H. OPERATIONAL ASPECTS 

1. Introduction 

The Tribunal's adjudicative processes and its administrative organization and systems have, of course, during 
the second 12 months of its existence continued to be in a developmental phase. By the end of the reporting period, 
the Tribunal had experienced about 21 months in an operational mode, but only about 12 months at or near full 
production levels. The Tribunal did not begin to reach its production capacity until the Fall of 1986 when the second 
major group of Vice-Chair and Member appointments came on stream. 

2. Administrative Highlights 

(a) The Computer 

In the First Report, the failure of the Tribunal's first computer system was reported and readers were advised that 
the development of a replacement system was under way. In the ensuing 12 months, considerable progress was 
made. A request for tender was developed, the tendering and evaluation process completed, and in June 1987, a 
contract was signed with Digital Electronics of Canada. By the end of the reporting period, the hardware had been 
delivered, terminals had been installed, and the process of putting the computer on-stream had begun. 

The computer system selected is an office-wide integrated system utilizing centrally located mini-computers. The 
system supports word processing, office management systems such as electronic mail, calendars and other time 
management devices, and conferencing and case management. 

16 



The development of the case management system involves software customized to the special needs of the 
Tribunal. The Tribunal has found it necessary to involve most of its administrative staff in the process of defining 
the details of the case management computer protocol and has been surprised by the amount of staff time this 
process has required. By the end of the reporting period, for instance, we estimate about 650 person hours have so 
far been expended in just the formal meetings associated with this activity. It is also clear that an equal or greater 
number of hours will be necessary before the program is up and running. The present schedule calls for the case 
management system to be operational in the spring of 1988. 

While the amount of staff resources required for the development of the case management system has been 
surprising, an important side effect is that the computer's needs in this respect have motivated a rigorous 
examination and refinement of the Tribunal's case management systems and procedures. The result is that the area 
of the Tribunal's organization and systems devoted to the management of the case flow is now especially tight and 
effective. 

One area in which I am anticipating the computer will provide unique advantages is with respect to hearing panel 
caucuses and other forms of internal. Tribunal meetings. The computer's conferencing capacity may be expected to 
improve the efficiency of the internal meeting processes significantly and should make an important contribution 
to cutting back the time taken by the tripartite decision-making process. 

(b) The Committee System 

To improve tripartite input into the development of Tribunal administrative policies and to enlist additional 
management resources, the Tribunal has introduced an administrative committee system. 

The committees currently consist of an Executive Committee; a Production Advisory Committee; a Tribunal 
Counsel Office, Practice and Procedures Committee; a Research, Publications and Library Committee; an 
Outreach and Training Committee; a French Language Services Committee; and a Finance and Administration 
Committee. 

The membership of these committees typically includes Vice-Chairs, Members representative of employers and 
workers, and the Department Head with the primary administrative responsibility in the areas of the committee's 
mandate. Of particular interest is the fact that most of the committees are chaired by worker or employer Members. 

The committees are responsible for approving and supervising policy developments in the area of their mandates. 
Department Heads report to the committees in that respect. Committee recommendations on policy matters are 
sent to the Executive Committee for comment and then to the Tribunal Assembly or Tribunal Chairman for final 
approval. (Whether final approval lies with the Chairman or the Tribunal Assembly depends on whether the subject 
matter falls within the Chairman's statutory prerogatives.) 

Readers will not have encountered in the First Report any reference to the Tribunal "Assembly". This is the label 
now applied to the meeting of all Order-in-Council appointments and senior staff. It is typically held two or three 
times a month and is chaired by the Alternate Chairman. This meeting has figured prominently in the Tribunal's 
management processes from the beginning. It is the same meeting which has provided an ongoing forum for the 
review and discussion of substantive issues as well. The Assembly does not, it may be noted, make decisions on 
substantive, case-related issues. 

The Executive Committee consists of one Vice-Chair, one worker Member, one employer Member, the Alternate 
Chairman, the Chairman and each of the Department Heads (General Counsel, General Manager, and the Director 
of Research and Publications). It is chaired by the Tribunal Chairman. It meets once a week and performs a co- 
ordinating role with respect to the other committees and a consultative role with respect to the Tribunal Chairman. 
The Executive Committee was established at the time the new committee system was introduced. 

(c) Staffing 

As of the end of the reporting period, the staff complement consisted of 66 regular staff, 22 contract staff, and 22 
full-time Order-in-Council appointments. 

The Tribunal also employs eight part-time Senior Medical Counsellors. 

As will appear from the financial reports for the fiscal period ending March 30, 1987, the Tribunal continues to 
make extensive use of temporary help, and it is expected that this will continue until the computer is fully 
operational and the administrative and adjudicative processes have stabilized. 

(d) No-smoking Policy 

As of September 1, 1987, the Tribunal became a no-smoking work environment. The rule against smoking 
applies to all parts of the Tribunal's premises, including private offices, hearing rooms, reception areas, etc., and 
extends to parties and their representatives attending at the Tribunal. 

17 



The policy was developed by a staff committee and its implementation strategy included four-month advance 
notice of the implementation of the policy, and Tribunal subsidization of staff participation in programs designed 
to assist individuals to quit smoking. 

As of the end of the reporting period, the policy had been in place for one month, and to date, there has been no 
indication of any resistance to the policy from any quarter. 

3. The Tribunal Counsel Office 

(a) The Controversy Recedes 

The Tribunal's use of its own counsel in the preparation of cases and in the hearings themselves was initially 
regarded as an innovative step and was controversial in the Tribunal's early months. Over the course of the 
Tribunal's second year of existence, the controversy on this point seems to have largely disappeared as far as the 
Tribunal's public is concerned. It remains, however, a subject of continuing internal debate. 

The disappearance of the subject from the public agenda may reflect the fact that the in-hearing appearances of 
Tribunal counsel have turned out to be relatively infrequent — currently, counsel appear in less than 20% of cases 

— and the difficult and especially controversial role of cross-questioning witnesses when testimony has not been 
adequately tested by others has been largely abandoned. 

(b) Cross-questioning of Witnesses 

The virtual abandonment by Tribunal counsel of the role of cross-questioning witnesses where questioning by 
party representatives has failed to test the testimony in areas of apparent weakness is a continuing subject for 
discussion within the Tribunal. At the present time, the role has been largely surrendered to the members of the 
hearing panel. While feedback from party representatives suggest that at least the representatives are more 
comfortable with the panel members rather than Tribunal counsel playing that role, the Tribunal Chairman, for 
one, has ongoing difficulty with the negative long-term implications for the adjudication process of panel members 
in effect accepting the responsibilities of an opposing counsel. This is an area of ongoing internal debate. 

(c) General Duties 

The Tribunal Counsel Office continues, of course, to be responsible for the development of the case descriptions 

— the initial sorting of the file, the selection of relevant documents, the summarizing of the cogent facts and the 
initial identification of the issues. The counsel provides generally the main point of contact between the parties and 
the Tribunal during the pre-hearing stages. 

An increasingly important role for Tribunal counsel is the identification of potential questions concerning the 
sufficiency of the medical evidence in a file. That role is described in more detail in the section dealing with medical 
evidence. 

Another responsibility of the Tribunal Counsel Office which is assuming more importance as the months go by is 
its duty to ensure that hearing panels are aware of particularly relevant previous decisions of other hearing panels 
and of the existence of conflicting previous decisions on any issue with which a panel is concerned. The goal is to 
maintain, as far as possible, consistency in the Tribunal's decisions so that, by and large, like facts will attract like 
results regardless of the particular panel the parties happen to draw. 

(d) The Future 

The role of the Tribunal Counsel Office and its procedures and process are still in a developmental phase, and 
there continue to be a range of views within the Tribunal as to what should be expected of Tribunal counsel and in 
particular as to how the counsel's role should relate to the Tribunal Members' role. Review and adjustment of the 
role is a part of the Tribunal's active planning agenda. There is no doubt, however, that the basic concept of the 
Tribunal having its own counsel is now accepted as an essential component of the Tribunal's design. 

4. Case Direction Panels and Instruction Panels 

The role of the Tribunal's Case Direction Panels in instructing Tribunal counsel deserves a word of further 
explanation. It is a role which, so far as I can recall, has not previously been described. 

The institution of the Case Direction Panel originated in the early planning of the Tribunal's adjudication 
process. It is a tripartite panel of the Tribunal identical in format and membership to a Tribunal hearing panel. It is 
resorted to for the purpose of providing Tribunal counsel, and — where appropriate — the parties, with directions 
concerning the Tribunal's pre-hearing activities. These include investigations (medical and other), selection of 
relevant documents, pre-hearing identification of issues, and other matters of potential controversy at the pre- 
hearing stage. It was my view from the beginning that it was necessary that members of the Tribunal adjudicating a 



particular case be isolated from the Tribunal's pre-hearing investigative and preparation activities in that case. 
Involvement of hearing panel members in the latter type of pre-hearing activities presents the danger of their 
developing a biased perspective and is contrary to the common law's traditions in that regard. A Case Direction 
Panel, composed of a Vice-Chairman and Worker and Employer Members of the Tribunal who are not involved in 
the adjudication of the case in question, is a device which permits the Tribunal to carry on its investigative role 
under appropriate tripartite Tribunal direction without jeopardizing its adjudicative role. 

Where a Case Direction Panel is required for the purpose of giving pre-hearing directions on contentious issues, 
it was contemplated that the Panel's decision in that respect would be arrived at after considering submissions on 
the matter from interested parties — either written or oral as the circumstances indicated. 

A role for Case Direction Panels which had not been originally contemplated, but which evolved early in the 
Tribunal's experience with the concept, was as a vehicle for private. Tribunal instructions to Tribunal counsel. 

In their role as the Tribunal's representative, it is understood that Tribunal counsel cannot engage in any activity 
or take any step except pursuant to instructions from the Tribunal — the client. As in any counsel-client 
relationship, there are, of course, established instructions of a general nature — the limits of which are implicitly 
understood — which establish the Tribunal Counsel Office's basic mandate. It is the obligation of individual 
members of the Counsel Office's staff to be sensitive to the implicit limits of their general instructions and to seek 
supplementary particular instructions whenever they are contemplating a step or an activity which they cannot be 
confident is authorized by the general instructions. 

The need for such special instructions arises routinely. One example is where counsel has come to the conclusion 
that significant, additional medical evidence is needed. Arranging for such evidence in a particular case is not 
activity within the ambit of a Tribunal counsel's general instructions. Accordingly, instructions in that regard must 
first be obtained from the Tribunal. 

The need for these instructions to be private — i.e. , obtained by a counsel's application to a Case Direction Panel 
without the involvement of the parties — arises because of logistical difficulties involved in inviting submissions 
from the parties in every such case when, in the majority of cases, the need for additional evidence will not be a 
matter of contention as far as the parties are concerned. The arrangement, therefore, is that counsel privately seeks 
instructions from a Case Direction Panel. If the instructions are issued, counsel then seeks the worker's co- 
operation and consent in this regard. If the worker or employer takes exception to such an initiative by counsel, the 
understanding is that the counsel then invites either party to take the issue to a Case Direction Panel (differently 
constituted) for further instructions. This latter application is one to which both parties would be privy and in 
respect of which submissions from the parties would be received. 

Where Case Direction Panels are used by Tribunal counsel for the purpose of obtaining private instructions it 
would, in my view, be preferable to characterize them as "Instruction Panels", reserving the "Case Direction 
Panel" label for those occasions when the parties are involved in obtaining pre-hearing directions from the 
Tribunal. 

Tribunal members involved in either type of panel continue to be barred from sitting on the hearing panel in the 
same case. 

5. Outreach and Training 

The Tribunal continues to recognize an institutional responsibility to assist the employer and worker 
communities in understanding the Tribunal's role and how things work at the Tribunal. The Chairman, Alternate 
Chairman, Vice-Chairmen, worker and employer Members, and staff, have all been receptive to invitations to 
speak to conferences and meetings or to participate in seminars and workshops. The frequency of this type of 
activity has been steady throughout the reporting period. 

The distribution of written explanatory material continues to be a priority. By the end of the reporting period, 
the Tribunal had distributed (in either the English or French versions) 28,000 copies of its pamphlet entitled. How 
to Appeal to the Workers' Compensation Appeals Tribunal. It has also continued to publish a Newsletter in both 
French and English. Four issues were published during the reporting period. Also, as its practice and procedures 
have stabilized, the Tribunal has issued a series of Practice Directions. These, together with standard-form 
explanatory letters issued to the parties at various stages in the Tribunal's process, provide individual employers and 
workers with the "how to" information usually required. 

The Tribunal also believes that it is in its institutional interest to do what it reasonably can to assist in the training 
of individuals who appear before the Tribunal as representatives of workers or employers. During the reporting 
period, the Outreach and Training Committee attempted to promote Tribunal participation in employer or worker 
organized training activities. Activity of this nature has been slow to develop, but as of the end of the reporting 
period the Tribunal was actively engaged in preparing for a full day training program for union, worker 
representatives which has been organized for early in October by the Canadian Auto Workers' Union. The plans 

19 



include a demonstration mock Tribunal hearing. The Office of the Employer Adviser has agreed to participate in 
this program through providing one of its staff in the role of employer representative. 

The Tribunal is sensitive to the potential risks involved in the Tribunal participating with employer or worker 
organizations in training programs which in the natural order of things are designed to serve partisan goals. Care, 
however, is being taken to avoid any suggestion of partisan perspective in the Tribunal's approach in such programs, 
and all reasonable efforts will be taken to ensure that the Tribunal is involved in this type of activity as much on 
behalf of workers as it is on behalf of employers. In the Tribunal's view, the risks, such as they are, have to be run 
since at this stage in the Tribunal's development there is much that representatives of workers or employers need to 
know which only Tribunal Members and staff can offer. 

The Tribunal's future plans in this area of training include periodic public training workshops organized and 
presented by the Tribunal itself. 

6. Scheduling 

At the end of the reporting period for the First Report, the Tribunal's strategy for arriving at hearing dates had 
progressed to the point where its scheduling department was establishing a mutually acceptable date through a 
process of prior consultation with the parties. This approach was coupled with a strict no-adjournment policy. 

About mid-way through the second reporting period, it was recognized that the scheduling staff was spending an 
inordinate amount of time in the consultation process. Furthermore, to meet the Tribunal's hearing targets it was 
necessary for the scheduling staff to persuade parties' representatives to accept hearing dates they did not really 
find convenient. This procedure was not only time-consuming and stressful but it produced hearing dates to which 
one or more of the parties was not truly committed and thus put additional pressure on the Tribunal's no- 
adjournment policy. 

The policy was, accordingly, changed. Now, when a case is ready for hearing from the Tribunal's perspective, the 
scheduling department contacts the parties and makes one, non-intrusive attempt to identify a mutually acceptable 
hearing date. If that effort is not productive — for whatever reason — then the parties are advised in writing of the 
Tribunal's willingness to set a hearing date and instructed to contact the Tribunal's scheduling department when 
they are ready. In the meantime, the case is put into a currently-non-schedulable category. If no initiative is taken by 
the parties, after a significant waiting period their representatives will be contacted again by the Tribunal. 

In moving to this strategy, the Tribunal accepted that it would mean a reduced number of hearings in the short- 
term. Eventually, however, the number of hearing-ready cases waiting for scheduling would reach a critical mass 
large enough to routinely generate the number of hearing requests the Tribunal needs to meet its targets. 

The strict, no-adjournment policy remains in force and it is the Tribunal's impression that the worker and 
employer representatives are gradually growing accustomed to it. The pay-off is apparent. Less than 10% of the 
Tribunal's hearing dates are postponed for any reason. 

7. Out-of- Toronto Hearings 

Through the second reporting period, the Tribunal's hearing panels continued to travel throughout the Province. 
At regular intervals, hearings are scheduled in Thunder Bay, Sudbury, Timmins, Ottawa, London and Windsor and 
have been held, in special circumstances, in other places as well. Twenty per cent of all cases heard during the 
reporting period were heard at out-of- Toronto locations. 

8. Maintaining Uniform Standards and Consistency in Tribunal Decisions 

In the 18 operational months up to the end of this reporting period the Tribunal had decided and issued one 
thousand, two hundred and two final decisions, employing for this purpose a total of 60 different adjudicators, 
sitting in panels of three. The Tribunal Chairman was the Panel Chairman in 32 cases. The balance of the hearings 
were chaired by 9 full-time and 19 part-time Vice-Chairs. The other members of the hearing panels consisted of 6 
full-time and 7 part-time employer members and 6 full-time and 1 1 part-time worker members. 

As indicated previously, the Tribunal is unique at this stage of its life in the high proportion of cases in which it 
finds itself dealing with seminal issues. 

The special importance of maintaining consistency in the Tribunal's decisions and the inherent difficulty in these 
circumstances of achieving that goal are obvious. The Tribunal has continued to pursue the strategies in this regard 
described in the First Report. These include training and orientation of newly appointed Vice-Chairmen and 
members; continuing programs of education and discussion of emerging issues within the Tribunal generally; the 
activities of the Tribunal Counsel Office as previously described, and the Office of the Chairman's system for 
reviewing all decisions at the draft stage. 

The last device, which is described in some detail in the First Report (page 14 and 15), is, of course, inherently 

20 



controversial from an administrative law perspective. Nevertheless, after 18 months' experience with the 
procedure, the Tribunal is satisfied that it does not interfere with the autonomy and independence of the hearing 
panels, Vice-Chairmen and Member support for the procedure is virtually unanimous, and all concerned find it 
impossible to imagine how, given its operational circumstances, the Tribunal could have managed without this 
procedure. 

9. Medical Evidence 

(a) Medical Assessors and Medical Counsellors 

Section 86h of the Act provides for the establishment, through appointment by Order-in-Council, of what the 
statute's marginal notes refer to as a "Panel of Medical Practitioners." It is the doctors on this "panel" to whom 
the Tribunal may send a worker for further medical examination. 

In fact, the marginal note's characterization of these doctors as a "panel" is misleading. The Act does not 
contemplate the doctors acting together as a panel in any respect. It is also clear that they are not intended to have 
any decision-making capacity. A more accurate collective description of this group of Order-in-Council appointed 
doctors would be that of a "roster". 

For the practitioners on its 86h roster the Tribunal has also adopted the label "Medical Assessors". This label 
reflects generally what the Tribunal understands their intended role to be and serves, as well, to distinguish this set 
of doctors from the Tribunal's own "Medical Counsellors." 

The Tribunal's Medical Counsellors are a group of senior specialists who have accepted part-time employment 
with the Tribunal and serve as wise counsel to the Tribunal in the medical area generally. Unlike the medical 
assessors, however, they do not examine workers nor do they give evidence or otherwise communicate with hearing 
panels in individual cases. 

During the reporting period, the Medical Counsellors have continued to be co-ordinated by Dr. Brian Holmes, 
currently Acting Radiologist-in-Chief of the Toronto General Hospital, and formerly Professor and Chairman, 
Department of Radiology, Faculty of Medicine, University of Toronto and former Dean of the Faculty of 
Medicine, University of Toronto. Dr. Holmes was Chairman of the Ontario Council of Health from 1981-86. 

In addition to Dr. Holmes, the group has comprised Dr. Douglas P. Bryce, formerly. Professor and Chairman, 
Department of Otolaryngology, University of Toronto, and Otolaryngologist-in-Chief, Toronto General Hospital. 
Dr. Bryce has a special interest in Laryngeal Pathology. 

Dr. John Soper Crawford, currently, Acting Chairman, Department of Ophthalmology, Faculty of Medicine, 
University of Toronto; Professor, Department of Ophthalmology, Faculty of Medicine, University of Toronto, and 
formerly Ophthalmologist-in-Chief, Hospital for Sick Children. 

Dr. Robert L. MacMillan, former Professor, University of Toronto, previously Senior Staff Physician and Head, 
Division of General Internal Medicine, Toronto General Hospital; Clinical Service Chief, 5 University Wing, 
Toronto General Hospital, and presently Staff Physician, Department of Internal Medicine, Toronto General 
Hospital. 

Dr. Ian MacNab, Professor Emeritus, Department of Surgery, University of Toronto and previously Director of 
Research, Wellsford Research Group, Halifax, Nova Scotia; Past Chief, Division of Orthopaedic Surgery, The 
Wellesley Hospital, 1966-1985. Dr. MacNab has a special interest in Spinal Research and Surgery. 

Dr. Thomas P. Morley, Professor Emeritus, Department of Surgery, University of Toronto; past Head, Division 
of Neurosurgery, Toronto General Hospital; Previous Consultant to St. Joseph's Hospital, Toronto East General 
Hospital, Mount Sinai Hospital, Clarke Institute of Psychiatry. Currently retired. 

Dr. Neil A. Watters, Professor Emeritus, Department of Surgery, University of Toronto; Previously Head, 
Division of General Surgery, University of Toronto, and Surgeon-in-Chief, The Wellesley Hospital. Currently 
retired. 

Dr. Robin Hunter was the original psychiatrist in the group. His untimely death in March 1987, left us bereft of 
counsel in the psychiatry area and in September 1987, Dr. Fred Lowy, was added to the group. Dr. Lowy is the 
recently retired Dean, Faculty of Medicine, University of Toronto; a former Director and Psychiatrist-in-Chief of 
the Clarke Institute of Psychiatry and Psychiatrist-in-Chief, Ottawa Civic Hospital; Vice President, Association of 
Canadian Medical Colleges, 1985-1987; Chairman, Council of Ontario Faculties of Medicine, 1985-1987; Visiting 
Scholar, Kennedy Institute of Ethics, Georgetown University, Washington, D.C., October to December 1987; and 
Member of the Bioethics Section, Institute of Medical Science, University of Toronto. 

The Medical Counsellors have played a number of roles. Through an ongoing series of lectures they have helped 
to raise the level of the Tribunal's general medical literacy. They also advise Tribunal counsel at the case preparation 
stage concerning the sufficiency of the medical evidence in particular files. 

21 



In the course of preparing a Case Description, when Tribunal counsel concludes that the medical evidence is 
especially complicated or is left wondering whether there might not be further medical investigation required, he or 
she now sends the file to the appropriate Medical Counsellor for review. The Counsellor advises the Counsel Office 
as to whether or not he thinks the evidence is sufficient and, if it is not, what other avenues of investigation ought, 
in his view, to be explored. If the Counsellor recommends further investigation, then the Tribunal counsel takes that 
recommendation to a Case Direction Panel — really an Instruction Panel (see above) — for instructions in that 
respect. The Medical Counsellor will frequently attend with counsel at the meeting with the Instruction Panel. 

The Counsellors have also been of great assistance in the Tribunal's recruitment of candidates for appointment 
as Medical Assessors and in advising the Tribunal Chairman generally with respect to medical profession protocol 
including, most importantly, advice on the question of appropriate fees for the Medical Assessors. 

The role of the Medical Counsellor continues to develop and is subject to ongoing review. 

(b) Appointment of Medical Assessors 

The recruitment and appointment of the Medical Assessors under the provisions of section 86h has proven to be 
a long and complex affair. The section requires that the Lieutenant Governor in Council make the appointments 
after "requesting and considering the views of representatives of employers, workers and physicians." The 
procedure that has emerged to comply with this requirement is as follows. 

The members of the Tribunal's Advisory Group (described in the First Report at page 7) were adopted as the 
"representatives of employers and workers" for this purpose. And because of their seniority and eminence within 
the medical profession, the Tribunal's Medical Counsellors were considered to be the representatives of physicians 
for this purpose. 

The members of the Advisory Group were invited to suggest the names of appropriate candidates and the 
Medical Counsellors were also consulted in this respect. They in turn consulted other colleagues within the 
profession. Names suggested by the Advisory Group or which came to my attention from other sources were 
reviewed with the Medical Counsellors. 

A tentative list of potential candidates was developed in this fashion. The individuals on that list were then 
approached to see if they would be interested in allowing their names to be entered in the approval process. The help 
of the Medical Counsellors was often enlisted in this recruitment process. 

Once approval had been obtained from a number of such candidates, a list was prepared with attached resumes. 
The list and resumes were then circulated to the Advisory Group and the members of that group were invited to 
indicate whether they had any concerns or reservations about the appointment of any of the doctors listed. The 
names, along with my recommendation and any Advisory Group adverse comments or questions, were then 
submitted to the Minister of Labour for his approval and submission to the Lieutenant Governor in Council. 

This process led finally to the appointment of an initial short list of assessors in May 1987. 

The development of a second, expanded list has been under way for a long time, and it is expected that a list of 
proposed candidates will not be ready for review by members of the Advisory Group until early in the new year. In 
this second list, the Tribunal has been attempting to ensure an appropriate geographical, ethnic and gender mix 
amongst the Assessors. Because the Tribunal is also committed to confining the list as much as possible to senior 
practitioners in the various specialties, the current demographics of the medical profession in Ontario has made the 
selection process particularly difficult. While the co-operation the Tribunal has received from the medical 
profession generally has been all that one would have hoped for, there are some areas of the profession and some 
areas of the province in which the Tribunal has encountered some general reluctance to be involved. 

10. Caseload Performance 

(a) Definition of Terms 

In analyzing the Tribunal's caseload performance in its first 12 months, the First Report found it necessary to 
define some terms. Those definitions are still pertinent and bear repeating. 

The Tribunal's caseload consists of its workload plus its backlog. The workload is the work progressing as 
planned, the backlog is the work which is not progressing as planned. It is the backlog which represents the extent of 
a tribunal's failure to reach or maintain its production plan. 

(b) The Pre-Hearing Stage 

As mentioned in Section F above, experience has required the Tribunal to adjust its production goals. In the pre- 
hearing stage where we once thought it would be reasonable to process even significant entitlement and quantum 
cases in not more than four months except in truly exceptional cases, we now know that the appropriate figure is not 

22 



four months but five to six months. See page 24 above where the various pre-hearing stages are defined and the time 
required for each is indicated. 

I am not resigned to the Tribunal never being able to reduce its pre-hearing cycle to the original four-month goal, 
or less, but I am satisfied that until the impact of the new computerized case management system is known and the 
Tribunal Counsel Office's role settled, five to six months must be seen to be necessary. As mentioned previously, a 
chunk of this time is attributable to what is required for the convenience of the parties and their representatives. 

There are, of course, categories of cases, such as section 77 Appeals and section 21 Applications, in which the 
pre-hearing cycle is much less — in the order of six weeks to two months. There are also particularly simple 
entitlement and quantum cases in which the actual pre-hearing process will in fact be completed in two or three 
months. 

It should also be emphasized that the pre-hearing cycle is measured from notice of appeal to the first hearing 
date. On this cycle, if the parties are ready, the setting of the hearing date will typically occur within three months of 
the Tribunal receiving the notice of the appeal. 

Each week the Tribunal now produces a weekly workload analysis. The analysis as of the end of the reporting 
period — the week ending October 2, 1987 — is attached as y4/7/7e/7Gf/'xC (Blue) to this report. That analysis shows 
that at the end of the week, the Tribunal's total active pre-hearing workload stood at 1 ,002 cases. These are all the 
cases at various stages in the pre-hearing process which are, generally speaking, available to be worked on. This 
does include some enforced sitting time. For example, the analysis shows that at the end of that week there were 38 
cases in the two-week waiting period between the sending of the case descriptions to the parties and contacting them 
about a hearing date, and there were 201 cases in which the hearing had been scheduled and the cases were simply 
waiting for the date to arrive. 

The active pre-hearing workload does not, of course, include those cases which are not available to be worked on, 
but which are on hold for some reason beyond the Tribunal staff's control. As of the week ending October 2, cases 
of this kind totalled 564 of which 391 were pension cases. (As previously indicated, as of the end of the reporting 
period pension cases were experiencing a further short-term hold while the Board and the Tribunal worked out 
certain jurisdictional problems related to the Board's enactment of its new chronic pain policy.) 

While the question of what the normal pre-hearing workload consists of is open to considerable interpretation, it 
appears that in the pre-hearing part of its operation the 1 ,002 cases indicated in the Appendix C Weekly Workload 
Analysis represents approximately the normal workload in that part of the Tribunal's operations. Thus, in the 
Tribunal's opinion, as previously indicated, there is no backlog problem in the pre-hearing part of the operation. 

This situation will change again when the short-term hold on the pension cases is lifted. Thus there will be a 
portion of the Tribunal's third year during which a backlog will exist at the pre-hearing stage. However, barring 
some truly unforeseen increases in the incoming caseload , backlog is not now a matter of serious concern in the pre- 
hearing part of the process. 

(c) The Post-Hearing Backlog Problem 

The backlog problem now lies, as was indicated previously, at the post-hearing, decision-making stage. It is a 
problem which has proved impervious to a variety of strategies and represents by a long measure the Tribunal's 
most important single ongoing problem. 

It is also a problem that is rooted in the nature of the Tribunal's role as a new adjudicative agency in an 
operationally mature area of activity. Since the Tribunal's experience in this regard seems likely to be of general 
interest from an administrative law point of view, and of some value to future agencies similarly fixed, I have 
devoted some considerable space in this report to analyzing the sources of this problem. 

As with the pre-hearing operations, it is important in understanding and assessing the backlog problem in the 
post-hearing stage to start with a realistic picture of the Aiorwo/ workload. 

On September 21, 1987, I presented a major report to the Tribunal on the decision-making backlog. In that 
report, I attempted a detailed assessment of what the post-hearing workload would be if everything were going well. 
Defining what the normal, overall workload in this phase of the Tribunal's operations actually is, is not a straight 
forward matter and there had been no previous attempt to describe it. 

My assessment in this regard was based on certain estimates as to the proportion of cases which will fall into 
various categories of workload following the first hearing, and as to the time required for cases in those categories 
to progress through the various post-hearing processes when everything is going well. The estimates are based on 
the Tribunal's experience to date and are consistent with the statistical records in this area such as they are. It is 
important to appreciate, however, that there is a large element of educated guess-work in these estimates. The 
estimates will be of particular interest to the Tribunal's constituencies because they do confirm the slippage relative 
to the original two-month post-hearing goal previously mentioned. A summary of those estimates is as follows: 

23 



1. Of every ten cases in which the first hearing day is completed, seven will require no further hearings and will 
emerge from the first post-hearing panel caucus (which typically occurs immediately following the hearing) ready 
to write; two will require further submissions or investigations (typically medical), and one will have been 
recessed for continuation of the hearing. 

2. For cases in the hands of full-time Vice-Chairs, of the seven ready to write, five can be decided, written and 
issued within two months; one will take three months, and one will take four months. 

3. For cases in the hands of part-time Vice-Chairs, of the seven ready to write, all will take three months to decide, 
write and issue. This different estimate for part-time Vice-Chairs reflects the fact'that, on the one hand, the 
Chairman tends to assign less difficult cases to panels chaired by part-time Vice-Chairs but on the other that the 
processing time is inevitably longer because the part-time Vice-Chairs are not resident in-house. 

4. For full-time Vice-Chairs, of the two cases requiring further submissions or investigations each will take, on 
average, three months to complete the submissions or investigations and a further two months to decide, write 
and issue. 

5. The part-time experience with respect to this latter type of case ought to be about the same as the full-time 
experience. 

6. For both full-time and part-time Vice-Chairs, the one case which is recessed to another hearing day, will require 
three months in which to arrange another hearing date and a further four months to then decide, write and issue 
the decision. The extra deciding and writing time reflects the fact that a case which cannot be disposed of 
completely in the time allotted on the first hearing date is likely to be especially complicated. 

The full-time Vice-Chairs are scheduled to a target of three hearings a week. Currently, when other 
responsibilities and vacations and holidays, etc., are taken into account, this weekly target actually produces 
approximately 2.5 new cases for each Vice-Chair to decide in each of the 52 weeks of the year. 

When, on the basis of the foregoing estimates, one traces the build-up of a full-time Vice-Chair's workload over 
time — charting, as each month goes by, the additions to the various categories, the movement between categories 
and the decisions issued each month — the steady-state profile of a typical workload for a Vice-Chair looks, at the 
end of any particular month, like this: 

1 . Decisions to be written over the next two months 16 

2. Decisions to be written over the next three months 4 

3. Decisions to be written over the next four months 9 

4. Cases in the Hearing Complete but on Hold category 8 

5. Cases in the Recessed to another date category 5 



TOTAL 42 

Assuming that the Tribunal is operating with its full complement of ten full-time Vice-Chairs (one appointment 
was still pending at the end of the reporting period), the total normal workload for the full-time Vice-Chairs would 
be 420 cases. A similar analysis for the part-time Vice-Chairs as a group — assuming that they will as a group be 
dealing with approximately 40 cases a month — indicates the normal workload for the group at the end of any 
particular month would be 152 cases. Thus, the total normal post-hearing steady-state workload for the Tribunal 
overall would be approximately 570 cases. 

The latter estimate is based on an operating level of 140 hearings per month. However, during the last eight 
months of the reporting period — the period of time over which the bulk of the current workload may be taken to 
have built up — the Tribunal averaged 125 hearings a month. Accordingly, the normal workload against which the 
present total caseload is to be compared for the purpose of determining the size of what can be fairly characterized 
as the post-hearing backlog, must be proportionately reduced. Thus, if the Tribunal were producing in the post- 
hearing phase at a normal production level, the workload that one would have expected to find at the end of the 
period — relative to the actual experience with the hearing rate over the preceding eight months — would be 
approximately 500 cases. 

The actual, total post-hearing caseload at the end of the reporting period was 758 cases. Accordingly, as of the 
end of the reporting period, the Tribunal was suffering from a post-hearing backlog of 255 cases. That backlog is to 
be found in the slippage of the actual experience against the normal times in each phase of the post-hearing 
processes as estimated above, but is most prominent with respect to cases in the ready-to-write category. 

The backlog measurement which is, of course, of most significance is the extent of the delays which have been 
visited upon individual workers and employers. The problem presents itself graphically in the Graph of Input and 
Output Trends attached as Appendix D (Orange). 

For the total period of the Tribunal's existence, the average time between the end of the hearing and the issuing of 
interim and final decisions was 3.7 months. Broken down by category of cases the average times are as follows: 

24 



33 


decisions 


4.5 


months. 


165 


decisions 


2.7 


months. 


20 


decisions 


3.8 


months. 


218 


decisions 


2.8 


months. 


842 


decisions 


4.1 


months. 


278 


overall average 


3.7 


months. 



Section 1 5 Application (to prohibit Civil law suits) 
Leave-to-Appeal Applications (86o) 
Objections to Employer-arranged Medical 

examinations (s. 21) 
Appeals re Access to workers' files (s. 77) 
Entitlement, Quantum and others 

Total final and interim decisions issued: 

It may be noted in this respect that it is in the last category — Entitlement, Quantum and Others — where the 
bulk of the major cases are to be found. There, also, are most of the cases which required post-hearing submissions 
or investigations as well as those which had to be recessed. The average time indicated in that category includes the 
time required for these extra post-hearing activities. Since approximately 20 per cent of the Tribunal's total cases 
have led to post-hearing activities of one kind or another and another 10 per cent are recessed to a second hearing 
date, and most of the cases of both types are to be found in the entitlement quantum category, it is fair to conclude 
that the actual average time between the point at which the cases in this category were actually ready to write and the 
date they were issued would be somewhat less than the 4. 1 months shown. 

The Tribunal believes the time taken to make the decisions that have been actually issued is, on average, 
reasonably acceptable under all the circumstances. 

The reader will appreciate, however, that while those numbers may indicate a fairly reasonable level of 
performance as far as the decisions which have been issued are concerned, they do not deal with the cases where 
decisions have not yet been issued. And, of course, it is here where the true problem lies. As indicated in the 
Chairman's Overview, at the end of the reporting period the Tribunal had on its books 207 cases in which the 
hearings had been complete six months without a decision issuing, and of these 47 had been complete for over 12 
months. 

There are several factors which have contributed to this problem, but as previously indicated, the major influence 
in this regard has been the nearly catastrophic nature of the issue overload. 

The problem has been addressed through a series of strategies that were not successful but, in September, steps 
were taken which I expect will solve this problem by some time early in the new year. 

These are as follows: 

First, it was agreed that any Vice-Chair with a significant backlog of decisions would not be assigned to any 
further cases until his or her backlog had been resolved. This meant a significant transfer of resources from hearing 
cases to only deciding cases and a reduction in the short run of the Tribunal's capacity to hear cases. 

Second, drafts and other decision-related documentation pertaining to backlogged cases were assigned 
overriding priority in the work of the word processing centre, secretaries and worker and employer Members. 

Third, part-time Vice-Chairs with intractable backlogs were urged to schedule blocks of writing time into their 
future schedules and to plan to take up residence in the Tribunal during that writing time, close to the worker and 
employer Members with whom they would have to be working with respect to those decisions and adjacent to the 
administrative and other back-up services that they would require. 

Fourth, a formal, structured control system was initiated designed to routinely track the progress of all cases at 
the decision-making stage and to identify cases at the point where they start to depart from the expected track. The 
system is designed to assist Vice-Chairs to identify and to confront at an early stage cases with which they are having 
special difficulty and to ensure that whatever additional help or back-up with respect to such cases is needed, is 
provided. The goal of this control system is to ensure that inordinate delays in the issuing of any decision occur only 
when they are not reasonably avoidable and only as a result of deliberate choices justified by well-understood 
reasons. 

Finally, steps were taken to fill the one remaining full-time Vice-Chairman position and to add another four, 
part-time Vice-Chairmen. This was done in order to provide some balance against the transfer of existing Vice- 
Chair resources out of the hearing schedule and in anticipation of the possibility that a long-term solution may 
require some permanent reduction in the full-time, Vice-Chairs' hearing schedules. 

(d) The incoming caseload 

During the reporting period, the Appeals Tribunal received a total of 1,854 new cases. The breakdown amongst 
the various categories of cases and the chronological analysis may be seen in the tables and charts in Appendix E 
(Grey) attached. 



25 



(e) The Tribunal's production 

During the same period, the Tribunal held hearings in 1,373 cases, and disposed of 7,505 cases — 553 cases 
disposed of without a hearing and a total of 952 final decisions issued after a hearing. The breakdowns and the 
production experience in chronological terms may be seen in the tables, charts and graphs in Appendix F 
(Red), attached. 

11. Decision No. 915 

Decision No. 915 was the culmination of the Tribunal's pension assessment appeals leading case strategy. It was 
released on May 22, 1987, following 24 days of evidence and three days of submissions from two parties, eight 
intervenors, and WCB and the Tribunal's counsel. The evidence included substantial testimony from senior Board 
officials as to the Board's policies, procedures and practice and extensive medical evidence on the subject of chronic 
pain. 

The decision was summarized by the hearing panel itself in the following terms:^ 

— The Panel agrees with the Board's interpretation of section 45 and, while it identifies 
possible problems with the Board's Rating Schedule, it finds that on the evidence in this 
case the Rating Schedule meets the requirements of the Act. 

— The Panel finds disabling Chronic Pain conditions which develop from industrial 
injuries to be generally compensable in principle, subject to genuineness and adequate 
motivation. 

— The Panel recognizes that the Board does not presently compensate for chronic pain and 
that a change in that policy will involve the development of a new Board chronic pain 
assessment strategy and assessment expertise. 

— The Panel proposes an interim Tribunal chronic pain assessment strategy for pension 
appeals received in the meantime, subject to subsequent reconsideration once the 
Board's chronic pain assessment policies are in place. 

— The Panel identifies the need for an early treatment and return to work strategy for 
incipient chronic pain cases (similar to what the Board is currently developing) which will 
require improved union and employer co-operation in accommodating disabled workers 
in the work-place. 

— In the particular case, the Panel concludes that the worker is suffering from a back and 
leg disability. The disability is caused by a permanent lower back organic lesion 
complicated by chronic pain magnification associated with a Psychogenic Pain 
Disorder. 

— Contrary to the Board's assessment which was based on the organic element only, the 
Panel finds that both elements of the disability result from the industrial accident and are 
compensable. 

— The Panel rates the worker's pension level by estimating the best-fit of his total disability 
with the bench-mark disabilities in the Board's Rating Schedule. 

— After considering evidence of symptom exaggeration and adjusting for minor 
undermotivation, the Panel rates the pension level at 25<'7o. The Board's rating was 15%. 

— The Panel reserves on the difficult question of retroactive payments and on that issue 
invites further submissions. 

— As previously arranged with the parties, the SIEF issue of possible transfer of 
responsibility for costs from the employer to the Accident Fund generally is to be the 
subject of reconvened hearings. 

The hearing of submissions from the parties and intervenors on the retroactivity issue — the issue reserved for 
further consideration — is scheduled for October 1987. 

12. The Library 

The Tribunal is particularly proud of its Library. The character of the Library as it has developed and the use it is 
attracting — both internally and from the Tribunal's various constituencies — are described below. This is a 
resource which in my view is indispensable in dealing with workers' compensation issues on an adequately 
informed basis and is one which has not previously been readily available — at least not in Ontario. 

Over the past year, the Tribunal Library has settled into its permanent quarters. The Library collection now 
stands at about 2,500 books and reports (102 journal titles). The collection has been catalogued using the UTLAS 

- Decision 915, Point-Form Synopsis. 

26 



cataloguing system. The Library staff scans publishers' reports, journals, conference proceedings, newspapers, on- 
line information retrieval systems and other library bulletins for items of interest to library users related to 
advocating and adjudicating workers' compensation cases. Special efforts have been made to acquire material of 
historical interest. 

The Library has adopted an acquisition policy which attempts to strike a balance between ownership of material 
and bibliographic awareness. Through the book and report collection and the journals and vertical files, research 
can be started in areas related to administrative and constitutional law, to workers' compensation law or policy, or 
to the medical issues related to cases before the Tribunal. The collection is supplemented by access to on-line 
information retrieval, library resources in the community and current awareness services. 

The Library serves the Appeals Tribunal's Members and staff and employer or worker representatives, lawyers, 
injured workers and others involved in or interested in workers' compensation. Full service hours in the Library are 
9 a.m. to 5 p.m., Monday to Friday. 

During the reporting period the Library staff: 

— added 1,700 records to the vertical file database. A selected list of new articles is 
circulated monthly to Tribunal staff and to the public on request (720 photocopies were 
made of articles on these lists). 

— upgraded the software used to search the WCAT DECISIONS DATABASE providing for 
keyword, panel, section number, date range and text word searches. Library staff has 
trained both WCAT staff and the public on use of this database and has filled both phone 
and in-person requests for searches (200 since April). A copy of this database has been 
sent to the Canadian centre for Occupational Health and Safety and will be used as the 
basis of a WCAT decisions database on their information retrieval system — CCINFO. 

— started a database of workers' compensation appeals decisions of other jurisdictions, 
e.g., Quebec, New Zealand, Manitoba. 

— expanded the Library current awareness service to include tables of contents of journals 
received in the Library and recent court decisions. Current-awareness computer searches 
of several information retrieval systems are done monthly in the coming year will include 
User Designed Profiles. 

— organized the Library collection of Canadian, U.S. and British court cases dealing with 
workers' compensation issues. 

— answered numerous reference queries from the staff and the public. (Statistics have been 
kept since April and 513 queries were received.) 

The Library provides staff with access to on-line information retrieval systems on request and has done 135 
searches to date. Interlibrary loans and photocopies resulting from these searches and other research total 1 , 195. To 
speed interlibrary loan requests, the Library staff uses electronic mail or on-line order services. Library staff 
routinely visit nearby libraries to keep up with the demand for photocopies of research material. 

13. Publications 

During the reporting period, the Research and Publications Department continued to index and summarize the 
decisions of the Tribunal. Decisions are available individually at a cost of $2.00 (approximately 500 decisions were 
requested during the year) or through the Decision Subscription Service which includes all significant decisions. 
The Decision Subscription Service presently has a subscriber list of 450. Significant decisions are summarized and 
the summary (or outline) is attached to the full text. This outline serves to call attention to the significant legal, 
medical or factual details of the decision. 

Various indices are available: the keyword index, the numerical index, the Section 15 index and the annotated 
statute. These are available to subscribers or on request. Creation of the annotated statute and the numerical index 
has been facilitated by the use of data management software — CARDBOX PLUS. It is anticipated in the coming 
year that these indexes will be produced monthly and will be up to date within a month of current material. 

To further enhance research of the Tribunal's published decisions, a full text search service is planned through 
Infomart Information Management Group, using BASIS software for search and retrieval of decisions. 
Availability of this database to the Members and staff of the Tribunal and to the public is planned for 1988. 

The first volume of the Tribunal's Compensation Appeals Forum appeared in October 1986. The Forum has been 
designed to provide a forum for a public exchange of views on Tribunal decisions, its practice and procedure, etc. 
The first volume contained articles on the history of the Tribunal, the role of the Tribunal counsel, and the 
Tribunal's handling of the chronic pain issue in Decision Nos. 9 and 50. Contributors included a Tribunal staff 
member, a worker representative and an employer representative. Volume 2(1) was also published and continued to 
reflect in its contents the tripartite character of the Tribunal. Volume 2(2) is scheduled for publication in October 

27 



1987. An issue devoted to the topic of causation in workers' compensation is planned in the coming year. A general 
call for papers has been issued. Copies of the journal are circulated free of charge. 

The publication of the Workers' Compensation Appeals Tribunal Reporter was postponed. It is now projected 
that the first volume will be available in January 1988. This Reporter v^'\\\ be published for the Tribunal by Carswell 
Legal Publications. Subscription price will be $40 per year to new subscribers and $20 per year to current 
subscribers of the Decision Subscription Service. 

The Tribunal continued to publish and distribute a Newsletter containing schedules of out-of-Toronto hearings, 
information about appointments to the Tribunal, updates on research, library and publica'tions resources and other 
items of interest. 

14. French-Language Services/Training 

The Tribunal continued during the past year to increase its ability to provide services in the French language. A 
three-year plan was prepared to enable the Tribunal to implement the French Language Services Act. The plan 
provides a program to acquire additional staff and to achieve a high level of response to the requirements of 
employers and workers appearing before the Tribunal who wish to use the French language. Certain programs are 
already in place to provide a bilingual capacity. 

The Tribunal policy and direction for French language results is directed by the French Language Services 
Committee comprised of Members representative of Employers and Workers, Vice-Chairmen and senior staff. 

During the past year the Tribunal translated 32 documents into French, including the "Outline" of Decision No. 
915. Also, the Chairman's First Report was translated into French and has received wide distribution. Every effort 
has been made to provide bilingual signage throughout the Appeals Tribunal with emphasis in the reception area, 
the library and the hearing rooms. 

It is also important to note that two Vice-Chairs and two panel members are fluent in French. This resource 
enables the Tribunal to schedule bilingual panels. To date two French-language hearings were planned, with 
bilingual panels and simultaneous translation. These hearings were withdrawn or adjourned for matters unrelated 
to the conduct in the French language. Also, bilingual panel members meet daily to discuss issues related to the 
hearings to maintain their fluency level. 

The Tribunal is updating the French/English lexicon or glossary which serves as an authoritative reference to 
assist with the translation of decisions and related material. 

The opportunity for employees at the Appeals Tribunal to enrol in French-language training courses is 
encouraged. The Tribunal, through the assistance of the Ontario Institute for Studies in Education and the Human 
Resources Secretariat, has provided French-language training to four levels, including introductory, intermediate, 
advanced and superior. The following is a summary of interest and attendance at French language training: 

— January/March 1987 — 41 employees 

— March/ June 1987 — 19 employees 

— July/September 1987 — 7 employees 

15. Representation at Hearings 

The Tribunal's experience during the reporting period with respect to the qualifications of the individuals 
appearing as representatives of workers or employers may be judged from the worker and employer representation 
profiles set out in Appendix G (Purple), attached. 

The Tribunal's experience with so-called para-professionals engaged in the business of appearing before the 
Tribunal on behalf of one or other of the parties for a fee is, as Appendix G will show, limited. It is, however, very 
uneven. Some "consultants" are highly professional and exceptionally competent. Others are doing a disservice to 
their clients. 

The Tribunal has had a number of occasions to contemplate what duty it might have to bring neglect, ignorance 
or incompetence of representatives to the attention of their clients or to some other authority. It has, however, 
always concluded that such intervention was inappropriate for an adjudicative tribunal. 

The Tribunal's experience in this regard indicates a need for public institutional arrangements for the training 
and supervision of professional representatives. 

I. THE TRIBUNAL'S RECONSIDERATION POWER — THEORY 

AND PROCEDURE 

By the terms of sections 86m and 76 of the Workers' Compensation Act, the Tribunal's powers of reconsideration 
read as follows: 

28 



The Tribunal may, at any time if it considers it advisable to do so, reconsider any decision, order, 
declaration or ruling made by it and vary, amend or revoke such decision, order declaration or ruling. 

During the reporting period, the Tribunal had occasion to consider a substantial number of applications for 
reconsideration of its decisions and to develop policies concerning the use of this discretionary power. Practice 
Direction 8 spells out the Tribunal's procedural approach to such applications and Decisions No. 72R a^jd 72R2 are 
decisions in which the Tribunal's substantive approach was first articulated. 

The Tribunal's basic position with respect to apphcations for reconsideration is that from the public interest 
perspective the importance of the Tribunal's decisions being — and being seen to be — final, is paramount and, 
accordingly, decisions should not be susceptible to being re-opened except in exceptional circumstances. The 
Tribunal also considers that section 76 defines a power which is highly discretionary and that embarking on a 
serious consideration of whether or not to resort to it in a particular case is also a discretionary activity which is not 
automatically invoked merely by a party's application. 

When an application for reconsideration is received, I make an initial decision as to whether there is sufficient 
potential substance in the submissions in support of the application to warrant my establishing a panel to consider 
it. This exercise of the Chairman's discretion under section 86e of the Act screens out those applications where it is 
apparent that the applicant is merely seeking to have the Tribunal consider his or her case a second time. 

Applications alleging error or missed evidence or new evidence or any matter that is arguably not without at least 
potential substance, I refer to a panel of the Tribunal which I establish for the purpose of reviewing the application 
in question. The Panel so established is usually — but not always — the hearing panel which heard and decided the 
case in the first instance. 

The question I refer to the review panel at this point is only whether the written submissions accompanying the 
application for reconsideration present — on their face — a serious enough case, relative to the Tribunal's criteria 
for embarking on a reconsideration, to require that the other party or parties in the case be given an opportunity to 
respond to the application. The response in question is, in the first instance, with respect to the issue as to whether 
or not the application has met the Tribunal's criteria for re-opening a case and embarking on a reconsideration. If 
the panel does not believe there is sufficient merit to the application to require it to hear such submissions in 
response, I will be so advised, and will thereupon advise the applicant that his or her application has been rejected. 

If, on the issue as to whether or not a reconsideration should be embarked upon, the panel concludes that the 
application has sufficient merit to warrant inviting the other party or parties to respond on that issue, then a copy of 
the application is sent to the other party and submissions are requested. Normally, this preliminary issue would be 
decided on the basis of written submissions only, although the panel could elect to proceed to a hearing. Upon 
receipt of such submissions, the panel then decides whether or not the application has satisfied the Tribunal's 
criteria for re-opening a decision and embarking on the reconsideration authorized by section 76. 

If the panel decides the criteria has been met, it advises me to that effect and I then establish a Tribunal panel for 
the purpose of conducting the reconsideration and determining whether the decision should be "varied or 
amended" — and, if so, how — or whether it should be "revoked" and, if it should be "revoked" what if anything 
should be done in the light of the revocation. Here, again, it would be usual to establish for this purpose the same 
panel which had heard and decided the case in the first instance. However, a differently constituted panel could also 
be appointed. Before deciding the application for reconsideration on its merits, the appointed panel would hold a 
hearing. 

The Tribunal also reserves to itself the right to undertake a reconsideration on its own initiative. To date this has 
happened on one occasion. 

I have found a pervasive tendency, amongst parties and their representatives, and within the Tribunal itself, to 
ignore the distinction between the decision to embark upon a reconsideration — that is, the decision to exercise the 
section 76 powers — and the decision to be taken at the end of such a reconsideration as to whether or not to 
confirm, vary, amend or revoke the original decision. The distinction is, however, one which must be maintained if 
the Tribunal is to keep control of its processes in this regard. Whether or not to embark on a reconsideration is a very 
different issue from whether or not to confirm, vary, amend or revoke after the reconsideration has been completed. 
Careful development of appropriate criteria for the determination of this threshold issue is required if the concept 
of the Tribunal's decisions as final decisions is to have real substance. 

J. 1986 CHALLENGES REVIEWED 

In the First Report (at page 23), the Chairman listed a number of particular challenges which as of the end of 
September 1986 the Tribunal still had to meet. A review of how the Tribunal stands with respect to each of those 
challenges as of the end of September 1987, would seem to be indicated. 



29 



1. Demonstrating that the Tribunal is capable of disposing of 215 cases a month 

As indicated above, the resources as planned in 1986 proved unable to produce at this level. A year-long average 
monthly production capacity of 160 to 170 cases appears to be the Tribunal's limit based on current resources. 

2. Installing a major integrated computer system successfully 

By the end of September 1987, this project, while not completed, was well in hand. 

3. Delivering a sound decision in the Pensions Appeals Leading Case 

The extent to which this challenge was met is obviously a matter of some controversy within the Tribunal's 
various constituencies. The Tribunal is satisfied, however, that this goal was achieved. 

4. Effecting the transfer from the scrambling style of management necessitated in the Tribunal's formative 
months to a professional day-to-day management 

The Chairman is satisfied that the day-to-day management of the Tribunal's affairs is professional, competent 
and effective. 

5. Reducing the time it takes to issue a decision after the hearing is complete 

This is a challenge the Tribunal has so far clearly been unable to meet. See the lengthy discussion of this problem 
above. 

6. The training of workers and employers in the Tribunal's procedures and process 

The worker and employer communities were slow to respond to the Tribunal's interest in this area. However, as 
indicated above, some progress in this area is now beginning to be seen. 

7. Providing hearings in the French language 

See in this respect the report concerning French Language Services generally at page 28, above. 

8. Appointment of a French-speaking member representative of workers 

This was accomplished in May 1987. See above at page 28. 

9. French Language services generally 

See above. 

K. FINANCIAL STATEMENTS 

Financial statements for the Tribunal's second fiscal period (April 1, 1986 to March 30, 1987) are attached as 
Appendix H (Brown). They consist of a Summary Statement of Expenditures and a detailed Statement of 
Expenditures. 

The budget against which the expenditures are compared in these statements was prepared for the Minister's 
approval in December 1985 — three months after the Tribunal came into existence. The variances between budget 
and expenditures are significant but under the circumstances not surprising. The net underexpenditure of 2.6 
million dollars reflects primarily the facts that anticipated operating levels were not reached as quickly as 
anticipated and the capital expenditure on the computer system was not required during this fiscal period for 
reasons that have been explained elsewhere. (See the First Report). 

All of which is respectively submitted, at Toronto, Ontario, as of September 30, 1987. 

S.R. Ellis 
Chairman 



30 



WORKERS' COMPENSATION APPEALS TRIBUNAL 



SECOND REPORT 

APPENDIX A 

TRIBUNAL MEMBERS 
ACTIVE DURING THE REPORTING PERIOD 



THE MEMBERS OF THE TRIBUNAL 

Chairman 

S. Ronald Ellis 

Mr. Ellis is the Tribunal's first Chairman. He assumed office on October 1, 1985. Mr. Ellis, who trained and 
practised as an engineer before going to law school, was formerly a partner in the Toronto law firm of Osier, Hoskin 
& Harcourt. More recently, he was a faculty member at Osgoode Hall Law School where he was Director and then 
Faculty Director of Parkdale Community Legal Services. He came to the Tribunal from his position as Director of 
Education and head of the Bar Admission Course for the Law Society of Upper Canada. In addition, Mr. Ellis has 
significant experience as a labour arbitrator. 

Alternate Chairman 

James R. Thomas 

Mr. Thomas was appointed to the Tribunal as a Vice-Chairman, effective October 1 , 1985, and was assigned by the 
Chairman to the position of Alternate Chairman. A lawyer with a degree in electrical engineering, Mr. Thomas 
worked with Canadian General Electric before entering the legal profession. His experience with C.G.E. included 
six years in managerial positions at one of its manufacturing facilities. He was called to the Bar in 1983. Prior to 
joining the Tribunal, he had extensive involvement with workers' compensation matters, both through his law 
practice and his work with community clinics. The position of Alternate Chairman is not one that is defined by the 
Tribunal's legislation. It is a management position created by the Chairman as a means of sharing the 
administrative and management load that devolves on the Chairman's Office. The title was chosen to reflect the 
senior nature of the position and the fact that the incumbent is also the Vice-Chairman appointed by the Chairman 
— pursuant to provisions in the legislation in that respect — to act in place of the Chairman in the event of the 
Chairman's absence from the Province or his inability to act. The Alternate Chairman, like the Chairman, has both 
a management and an adjudicative role. 

Full-time Vice-Chairmen 

Laura Bradbury 

Ms. Bradbury was appointed to the Tribunal effective October 1, 1985. Called to the Bar in 1979, she acted as 
counsel for injured workers and, for the two years prior to her appointment, was an investigator with the Office of 
the Ombudsman. 

Nicolette Catton 

Ms. Catton was appointed to the Tribunal effective October 1, 1985. A graduate in sociology, she was with the 
Office of the Ombudsman for nine years prior to her appointment. From 1978 to 1985, she was in charge of the 
Ombudsman's Workers' Compensation Directorate. 

Maureen Kenny 

Ms. Kenny was appointed to the Tribunal effective July 30, 1987. She was called to the Bar of Ontario in 1979. 
Following a period of private practice in the field of labour law, Ms. Kenny joined the (Ontario) Ministry of Labour 
as a policy analyst. She came to the Tribunal originally in October 1985, in the position of Counsel to the 
Chairman. 

Faye W. Mclntosh-Janis 

Ms. McIntosh-Janis was appointed to the Tribunal effective May 14, 1986. She was called to the Bar of Ontario in 
1978, and was a full-time member of the Research Department at Osier, Hoskin & Harcourt for six years. She 
comes to the Tribunal from the position of Senior Solicitor with the Ontario Labour Relations Board. 



A-1 



Elaine Newman 

Ms. Newman was appointed to the Tribunal effective July 9, 1986. Called to the Bar in 1979, Ms. Newman was 
previously senior staff lawyer with the Advocacy Resource Centre for the Handicapped in Toronto. She joined the 
Tribunal originally in October 1985, in the position of senior lawyer in the Tribunal's Counsel Office. 

Kathleen O'Neil 

Ms. O'Neil was appointed to the Tribunal effective January 22, 1986. She was a lawyer with the Ontario Nurses' 
Association, and with the Federation of Women Teachers' Association. Prior to her appointment, she practised 
with the firm of Symes, Kitely & Mclntyre. She has also chaired the Justice Committee of the National Action 
Committee on the Status of Women. 

Antonio Signoroni 

Mr. Signoroni was appointed to the Tribunal effective October 1, 1985. A practising lawyer since 1982, Mr. 
Signoroni had ten years experience as a part-time chairman to the Board of Referees of the Unemployment 
Insurance Commission. Before entering the legal profession he was involved extensively with service to the Italian 
community. He was a Trustee on the Metro Separate School Board from 1980 to 1982. 

Ian J. Strachan 

Mr. Strachan was appointed to the Tribunal effective October 1 , 1 985 . Called to the Bar in 1 97 1 , Mr. Strachan's law 
practice involved advising small businesses with respect to a variety of commercial matters and employee-related 
issue. He has also served as a director of the Canadian Organization of Small Business. 

Members Representative of Employers and Workers: FuU-Time 

Robert Apsey 

Mr. Apsey was appointed to the Tribunal as a Member representative of employers effective December 11, 1985. He 
held a number of responsible positions at Reed Stenhouse during his 25 years with that firm until his early 
retirement in 1983, as a Vice-Chairman of the Board and Senior Vice-President. 

Brian Cook 

Mr. Cook was appointed to the Tribunal as a Member representative of workers effective October 1, 1985. A 
graduate of the University of Toronto, Mr. Cook was a community legal worker with the Industrial Accident 
Victims Group of Ontario for five years. 

Sam Fox 

Mr. Fox was appointed to the Tribunal as a Member representative of workers effective October 1, 1985. A past 
president of the Labour Council of Metropolitan Toronto, Mr. Fox is a former Co-Director and International Vice- 
President of Amalgamated Clothing and Textile Workers Union. 

Karen Guillemette 

Ms. Guillemette was appointed to the Tribunal as a Member representative of employers effective July 2, 1986. Ms. 
Guillemette has been the Administrator of Occupational Health at Kidd Creek Mines Limited in Timmins, and has 
been an active member of the Ontario Mining Association. Prior to her position as Administrator, she was the 
Industrial Nurse at Kidd Creek Mines. 

Lome Heard 

Mr. Heard was appointed to the Tribunal as a Member representative of workers effective October 1, 1985. With 
more than 30 years of experience in workers' compensation matters, Mr. Heard came to the Tribunal from a 1 3-year 
career with the United Steelworkers of America where he had national responsibility for occupational health and 
safety, and workers' compensation. 

W. Douglas Jago 

Mr. Jago was appointed to the Tribunal as a Member representative of employers effective October 1, 1985. Mr. 
Jago had been Managing Director of Brantford Mechanical Ltd., and President and principal owner of W.D. Jago 
Ltd., both mechanical contracting concerns. He was an active member of the Mechanical Contractor's 
Association. 

Frances L. Lankin 

Ms. Lankin was appointed to the Tribunal as a Member representative of workers effective December 1 1 , 1985. For 
five years prior to her appointment, she was the Research/Education Officer for the Ontario Public Service 
Employees Union. She was also that union's equal opportunities coordinator. 

A-2 



David C. Mason 

Mr. Mason was appointed to the Tribunal as a Member representative of employers effective October 1 , 1985. Mr. 
Mason came to the Tribunal following a number of years as an industrial relations personnel manager with Rio 
Algom Ltd. 

Nick McCombie 

Mr. McCombie was appointed to the Tribunal as a Member representative of workers effective October 1, 1985. His 
move to the Tribunal followed seven years' service as a legal worker at the Injured Workers' Consultants legal clinic 
in Toronto. 

Kenneth W. Preston 

Mr. Preston was appointed to the Tribunal as a Member representative of employers effective October 1 . 1985. A 
graduate chemical engineer, Mr. Preston was Director of Employee Relations for Union Carbide for ten years and 
Vice-President of Human Resources for Kellogg Salada for three years. 

Maurice Robillard 

Mr. Robillard was appointed to the Tribunal effective March 11, 1987. Prior to his appointment, he was an 
international representative of the Amalgamated Clothing and Textile Workers' Union of America for 20 years with 
a wide range of experience including mediation of internal union problems, negotiating contracts, appearances 
before various provincial labour relations boards and advising workers of their rights under provincial labour laws. 

Jacques Seguin 

Mr. Seguin was appointed to the Tribunal as a Member representative of employers effective July 1, 1986. Mr. 
Seguin was Chairman of the Softwood Plywood Division of the Canadian Hardwood Plywood Association 
C.L.A. and Vice-President of CHPA from 1981 to 1983, and retired from Levesque Plywood Limited as General 
Manager in 1984. 

PART-TIME MEMBERS OF THE TRIBUNAL 

Part-Time Vice-Chairmen 

Arjun Aggarwal 

Dr. Aggarwal was appointed to the Tribunal effective May 14, 1986. He is currently the coordinator of labour 
management studies at Confederation College in Thunder Bay, Ontario. He has past experience as a labour lawyer, 
labour consultant, conciliator, fact-finder, referee, and is an approved arbitrator. 

Jean-Guy Bigras 

Mr. Bigras was appointed to the Tribunal effective May 14, 1986. Mr. Bigras is a bilingual communications 
specialist, writing reports and speeches for government agencies and private relations firms. He was formerly the 
Chief, Creative Services, General Secretariat of the National Capital Commission, and Manager of Information 
Services of the Export Development Corporation. He spent 10 years with the North Bay Nugget, first as a District 
Editor and finally as City and News Editor. 

Sandra Chapnik 

Appointed to the Tribunal effective March 1 1 , 1987, Ms. Chapnik practices with the law firm of Leonard A. Banks 
and Associates. She has also served as a part-time Rent Review Commissioner and a Fact Finder for the Education 
Relations Commission. 

Gary Farb 

Mr. Farb was appointed to the Tribunal effective March 1 1 , 1987. He is in private practice and was called to the Bar 
in 1 978 . He has a wide range of experience in administrative law, including two years as legal counsel in the Office of 
the Ombudsman. 

Ruth Hartman 

Ms. Hartman was appointed to the Tribunal effective December 1 1 , 1985. She is currently in private practice with 
an emphasis on administrative appeals to provincial tribunals. She was previously counsel to the Ombudsman for 
five years. 



A-3 



Joan Lax 

Ms. Lax was appointed to the Tribunal effective May 14, 1986. Called to the Bar in 1978, she has practised with the 
law firm of Weir & Foulds, with emphasis on administrative and civil law. She is currently the Assistant Dean, 
Faculty of Law, University of Toronto. 

John M. Magwood 

Appointed to the Tribunal effective December 1 1 , 1985, Mr. Magwood was called to the Bar in 1936 and has been a 
prominent member of the Ontario Bar for over 40 years. Over the past eight years, he had been the chairman of the 
Canadian Executive Services Overseas (CESO). 

Victor Marafioti 

Mr. Marafioti, appointed to the Tribunal effective March 11, 1987, is currently the Director of Business Programs 
at Centennial College of Applied Arts and Technology. For approximately ten years, he was the Director of COSTI, 
a rehabilitation centre with extensive involvement with the Workers' Compensation Board. 

William Marcotte 

Mr. Marcotte was appointed to the Tribunal effective May 14, 1986. He is a mediator and is on the list of approved 
arbitrators with the Ministry of Labour. He teaches collective bargaining processes and educational organizations 
at the University of Western Ontario. 

Eva Marszewski 

Ms. Marszewski was appointed to the Tribunal effective May 14, 1986. She was called to the Bar in 1976 and is, at 
present, in private practice with special emphasis on civil litigation, family law, municipal law and labour law. She is 
a past member of the Ontario Advisory Council on Women's Issues. 

John Paul Moore 

Mr. Moore was appointed to the Tribunal effective July 16, 1986. Called to the Bar in 1978, Mr. Moore is currently a 
staff lawyer with Downtown Legal Services on a part-time basis, dealing with various administrative tribunals. 

Denise Reaume 

Appointed to the Tribunal effective March 1 1 , 1987, Professor Reaume is a Professor of Law at the University of 
Toronto. She teaches administrative law and her past experience includes a research study entitled, "Compensation 
for Loss of Working Capacity" for the Ontario Law Reform Commission. 

Sophia Sperdakos 

Ms. Sperdakos was appointed to the Tribunal effective May 14, 1986. She was called to the Ontario Bar in 1982 and 
is currently with the law firm of Dunbar, Sachs, Appeal. She was a chairperson and caseworker with the 
Community and Legal Aid Services programme at Osgoode Hall Law School. 

Susan Stewart 

Ms. Stewart was appointed to the Tribunal effective May 14, 1986. Ms. Stewart articled with the Ontario Labour 
Relations Board and was called to the Bar of Ontario in 1980. She has been a lawyer with the Ontario Nurses' 
Association for approximately four years and has participated in arbitration hearings as an advocate and union 
nominee. 

Gerald Swartz 

Mr. Swartz, appointed to the Tribunal effective March 11, 1987, was at one time Director of Research for the 
Ministry of Labour. He is now the President of Canadian Loric Consultants Ltd. He has experience in human 
resources management, negotiating collective agreements, arbitrations, and workers' compensation and 
employment standards assessments. 

Paul Torrie 

Mr. Torrie was appointed to the Tribunal effective May 14, 1986. He is currently a partner in the law firm of Torrie, 
Simpson, practising in a wide range of litigation, administrative and corporate law. Mr. Torrie's additional work 
experience includes community legal work with the Osgoode Hall Community Legal Aid Services programme. 

Peter Warrian 

Mr. Warrian was appointed to the Tribunal effective May 14, 1986, and has extensive labour relations experience 
through his involvement with the Ontario Public Service Employees Union. He currently carries on a consulting 
business with government and union clientele and has written extensively in the labour relations field. 

A-4 



Chris Wydrzynski 

Professor Wydrzynski was appointed to the Tribunal effective March 11, 1987. He is a professor of law at the 
University of Windsor (since 1 975) and was called to the Bar in 1 982. He teaches administrative law and has acted as 
a referee, analyst, consultant, research evaluator and panelist. 

Members Representative of Employers and Workers: Part-Time 

Shelley Acheson 

Ms. Acheson was appointed to the Tribunal as a Member representative of workers effective December 11, 1985. 
She was the Human Rights Director of the Ontario Federation of Labour from 1975 to 1984. 

Dave Beattie 

Mr. Beattie was appointed to the Tribunal as a Member representative of workers effective December 11, 1985. He 
has 20 years of WCB experience representing injured workers or disabled firefighters in Appeals Adjudicator and 
Appeal Board hearings. 

Frank Byrnes 

Mr. Byrnes was appointed to the Tribunal as a Member representative of workers effective May 14, 1986. He was 
formerly a police officer and has been a member of the Joint Consultative Committee on Workers' Compensation 
Board matters. 

Herbert Clappison 

Mr. Clappison was appointed to the Tribunal as a Member representative of employers effective May 14, 1986. Mr. 
Clappison retired from Bell Canada in 1982 after 37 years of employment with that company. Upon retirement, he 
was Director of Labour Relations and Employment. 

George Drennan 

Mr. Drennan was appointed to the Tribunal as a Member representative of workers effective December 11, 1985. He 
has been the Grand Lodge Representative for the International Association of Machinists and Aerospace Workers 
since 1971. 

Douglas Felice 

Mr. Felice was appointed to the Tribunal as a Member representative of workers effective May 14, 1986, and is 
currently with the Canadian Paper Workers Union. 

Mary Ferrari 

Ms. Ferrari was appointed to the Tribunal as a Member representative of workers effective May 14, 1986. Her 
previous experience includes legal worker with the Industrial Accident Victims Group of Ontario. 

Patti Fuhrman 

Ms. Fuhrman was appointed to the Tribunal as a Member representative of workers effective May 14, 1986. She was 
a caseworker at the Advocacy Resource Centre for the Handicapped and, more recently, was a worker with 
Employment and Immigration Canada. 

Donald Grenville 

Mr. Grenville was appointed to the Tribunal as a Member representative of employers effective December 11,1 985 . 
He has an extensive personnel management background with Texas Gulf Sulphur Canada and more recently, 
Canada Development Corporation. 

Roy Higson 

Mr. Higson was appointed to the Tribunal as a Member representative of workers effective December 11, 1985. He 
recently retired from the Retail, Wholesale and Department Store Union. He was the international representative of 
Local 414 for nine years and has 29 years of union experience. 

Faith Jackson 

Ms. Jackson was appointed to the Tribunal as a Member representative of workers effective December 1 1 , 1985. A 
Nurses' Aid at Guildwood Villa Nursing Home from 1972 to 1985, Ms. Jackson was a member of the Executive 
Board of the Service Employees International Union (SEIU) for six years. 



A-5 



Donna Jewell 

A resident of Lx)ndon, Ms. Jewell was appointed to the Tribunal as a Member representative of employers effective 
December 1 1 , 1985. She has been the assistant safety director of Ellis-Don Ltd. for approximately seven years. She 
managed the Ellis-Don WCB claims management and safety programs. 

Peter Klym 

Mr. Klym was appointed to the Tribunal as a Member representative of workers effective May 14, 1986. He is 
currently employed with the Communication Workers of Canada. 

Teresa Kowalishin 

Ms. Kowalishin was appointed to the Tribunal as a Member representative of employers effective May 14, 1986. She 
has been employed as a lawyer with the City of Toronto since her call to the Bar in 1979. 

Martin Meslin 

Mr. Meslin was appointed to the Tribunal as a Member representative of employers effective December 1 1, 1985. 
He has over 30 years of experience in running his own business in the printing industry. He was a lay member of the 
Ontario Legal Aid Plan Appeals Committee. 

John Ronson 

Mr. Ronson was appointed to the Tribunal as a Member representative of employers effective December 11, 1985. 
He has an extensive background in personnel development at Stelco. 

Members Who Resigned During the Reporting Period 

The following part-time Tribunal Members resigned during this reporting period: 

James Connor 

Tribunal Member representative of employers 

William Correll 

Tribunal Member representative of employers 

Allan Maclsaac 

Tribunal Member representative of workers 

Marlene Philip 

Vice-Chairman 

Frank Sampson 

Tribunal Member representative of employers 

E.A. (Ted) Seaborn 

Tribunal Member representative of employers 

Ken Signoretti 

Tribunal Member representative of workers 



A-6 



WORKERS' COMPENSATION APPEALS TRIBUNAL 



SECOND REPORT 

APPENDIX B 

MEMORANDUM OF UNDERSTANDING 

BETWEEN 

THE CHAIRMAN OF THE TRIBUNAL 

AND 

THE MINISTER OF LABOUR 



MEMORANDUM OF UNDERSTANDING 

BETWEEN 

THE WORKERS' COMPENSATION APPEALS TRIBUNAL ('Tribunal') 

AND 

THE ONTARIO MINISTRY OF LABOUR CMinistry') 

DATE: October 16, 1987 



"G. Sorbara" "S.R.Ellis" 



CONCURRED: 



'Robert G. Elgie" 



Chairman 
Workers' Compensation Board 



Minister of Labour Chairman 

Workers' Compensation Appeals Tribunal 



B-1 



CONTENTS 

Page 

1. INTRODUCTION AND BACKGROUND 1 

2. PURPOSE AND OBJECTIVES OF TRIBUNAL 1 

3. ROLE AND RESPONSIBILITIES 2 

4. ADMINISTRATION 3 

5. SUPPORT SERVICES 5 

6. FINANCIAL 6 

7. OPERATING STATUS 8 

8. REPORTING 8 

9. AUDIT 9 
10. SUNSET REVIEW 9 



B-2 



1. INTRODUCTION AND BACKGROUND 

(a) This Memorandum of Understanding constitutes a formal description and agreement on the administrative, 
operating and accountabiHty relationships between the Chairman of the Workers' Compensation Appeals 
Tribunal ('Chairman'), the Workers' Compensation Appeals Tribunal ('Tribunal'), and the Minister of 
Labour ('Minister'). This agreement does not supersede the provisions of the constituting legislation, nor is 
it intended to interfere with the independent judicial operation of the Tribunal. 

(b) The Tribunal was created by the Workers' Compensation Amendment Act, S.O. 1984, Chapter 58 — 
Section 32, which came into force on October 1, 1985. 

(c) The Chairman shall exercise his responsibilities and activities in accordance with his Memorandum of 
Understanding, subject to the Workers' Compensation Act ('Act') and the powers conferred upon the 
Chairman by that Act. 

(d) The Memorandum of Understanding is effective on the date it is executed by the Minister of Labour and the 
Chairman, subject to the approval of Management Board of Cabinet. 

(e) The Memorandum of Understanding shall be reviewed at the request of either the Minister of Labour or the 
Chairman, or upon the appointment of a new Chairman or a new Minister. Any future amendments to this 
Memorandum of Understanding are subject to the approval of Management Board of Cabinet. 

2. PURPOSE AND OBJECTIVES OF THE WORKERS' COMPENSATION APPEALS TRIBUNAL 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial and independent manner, 
appeals by the workers and employers from decisions, orders or rulings of the Workers' Compensation Board, and 
any matters or issues expressly conferred upon the Tribunal by the Act. 

It is the objective of the Tribunal to hear appeals or applications as expeditiously and efficiently as possible in 
order to ensure an appellant or applicant is given a hearing without undue delay, while giving due consideration in 
each case to the need to identify the issues, investigate the facts, ensure the availability of necessary relevant medical 
and other evidence, and consider the applicable policy and law. 

The Tribunal will, while attempting to keep cases on hand to a minimum, and investigating the facts of each case, 
carry out its operations within the budget approved by the Minister of Labour. 

3. ROLE AND RESPONSIBILITIES 
Minister of Labour 

(a) The Minister is responsible for reporting to the Legislative Assembly and its committees on the activities, 
performance and expenditures of the Tribunal, and is further responsible for the preparation of any 
legislative amendments which may be required in the future. 

(b) The Minister of Labour will: 

— approve the annual budget of the Tribunal; and 

— review the Tribunal's Annual Report. 

(c) The Minister shall communicate to the Tribunal those policy decisions of the Government of Ontario 
relevant to the Tribunal's operations as required. 

(d) The Minister, as the member of the Executive Council responsible for the Act, is responsible for the tabling 
on behalf of the Tribunal of any submissions, reports, and requests which it may make to the Legislative 
Assembly and its committees, to Cabinet, to Management Board of Cabinet, and other relevant government 
agencies. 

(e) The Minister shall arrange for, and provide, the administrative support services and technical advice from 
the Ministry of Labour or other agencies of the Ontario Government specified herein in a manner that does 
not interfere with the Tribunal's ability to make independent judicial decisions. 

The Workers' Compensation Appeals Tribunal 

(f) The Tribunal is responsible for exercising the powers and performing the duties as described in Section 86(a) 
through 86(o) inclusive of the Workers' Compensation Act in an efficient, effective, fair and objective 
manner. 

(g) The Tribunal, in exercising such powers, shall adjudicate on individual cases independent of the 
Government, the Minister, and the Workers' Compensation Board, or any other individual group or 
organization, subject only to the provisions, limitations, and conditions found in the Act. 

Chairman, Workers' Compensation Appeals Tribunal 

(h) The Chairman of the Tribunal is its Chief Executive Officer. 

(i) The Chairman is responsible for ensuring that the legislated mandate of the Tribunal is fulfilled in an 
efficient and effective manner. 

B-3 



0) The Chairman is responsible for the efficient, effective, fair and objective operation of the Tribunal, and as 
Chief Executive Officer, is accountable to the members of the Workers' Compensation Appeals Tribunal for 
such operations, and as Chairman is accountable to the Legislature of Ontario through the Minister. 

(k) The Chairman has the obligation to provide the Minister with such information concerning the Tribunal's 
operations as the Minister may require for reports to the Legislative Assembly and its committees. 

(1) The Chairman has the right to operate the Tribunal in accordance with the specific exemptions contained in 
Section 4 of this Memorandum, and for those items not specifically set out, shall operate in accordance with 
the administrative policies of the Government of Ontario. 

(m) The Chairman of the Tribunal will prepare an annual budget and will forward this budget to the Minister for 
his consideration by December 31st of the calendar year preceding the fiscal year in question. 

(n) The position of the Chairman must be classified under the Executive Compensation Plan. 

Workers' Compensation Board (The Board') 

(o) The Board is responsible for flowing funds necessary for the day-to-day operations of the Tribunal and for 
incorporating such expenditures of the Tribunal as part of the Board's administrative expenses. The Board 
will exercise no other administrative duties other than this item. 

4. ADMINISTRATION 

The Tribunal has been designated a Schedule 1 Agency in accordance with Section 25-2 of the Ontario Manual of 
Administration, with the following specific exceptions to the guidelines governing Schedule 1 Agencies. 

(a) The Chairman, according to sub-section 86b(3) of the Act may, at his discretion, establish job 
classifications, personnel qualifications and ranges for remuneration and benefits and may appoint, 
promote and employ officers and employees of the Tribunal in accordance with the Tribunal's framework of 
personnel, salary and benefits, subject to guidelines as established by Management Board of Cabinet. 
The Chairman further agrees to take as his guidelines for the classification and remuneration for officers 
and staff of the Tribunal the classification and remuneration within the Civil Service, and as his guidelines 
for the recruiting of such officers and staff, the principles and practices of the Ontario Public Service with 
regard to open competitions and selection based on merit and guidehnes established by Management Board 
of Cabinet for the public service as a whole. 

The Chairman will appoint officers and staff as Crown Employees of the Tribunal, and not as employee 
under the Public Service Act. 

Subject to an obligation to bargain collectively with Tribunal employees, full-time employees may receive 
employee benefits as provided in Part VI of Regulation 88 1 under the Public Service Act in the same manner 
as if such employees were appointed to the Service of the Crown under the Public Service Act and the 
Tribunal shall pay the employee's portion of such benefits through the appropriate Government of Ontario 
Plan in force. 

(b) Lawyers employed by the Tribunal shall be employees of the Tribunal and not members of the Common 
Legal Service of the Ministry of the Attorney General. 

(c) The Tribunal may, out of funds provided by the Workers' Compensation Board, acquire all forms of goods 
and services including office equipment, outside legal and other professional services, accommodation and 
information processing systems necessary for efficient and effective operations. 

(d) In acquiring such goods and services, the Tribunal will follow the policies and practices used by the Ontario 
Government in acquiring goods and services as established by Management Board of Cabinet. 

(e) Any assets, either real or intellectual property, acquired by the Tribunal, shall be considered assets of the 
Tribunal and shall be insured against appropriate perils by the Tribunal. It is understood that in the event of 
a disabandonment of the Tribunal, the title to the Tribunal's assets shall pass to the Workers' Compensation 
Board. 

(f) The Tribunal will, while maintaining its own bank accounts for payments, use the Government's Integrated 
Payroll, Personnel and Employee Benefits System (IPPEBS), and receive support from the Ministry of 
Government Services' Employee Benefits and Data Services Branch, to record personnel information and 
provide a basis of benefits administration and the generation of payroll cheques and cheques to insurance 
carriers and to the Federal Government with regard to universal social benefits. The Tribunal will use 
standard government documentation for input to this system. 

(g) The Tribunal will not use the Government's Central Attendance Reporting System (CARS) but will 
maintain its own record of vacation attendance and other credits for its staff. 

(h) The Tribunal is required to adhere to the Government of Ontario's Visual Identity Program in consultation 
with the Secretariat of the Management Board of Cabinet and as prescribed in the Ontario Visual Identity 
Manual. 



B-4 



5. SUPPORT SERVICES 

(a) Unless otherwise mutually agreed between the Ministry of Labour and the Tribunal, the Ministry of Labour 
will provide administrative advice and support services to the Tribunal upon request with respect to the 
following: 

— assistance in acquisition of accommodation and future relocation; 

— office automation, telecommunications, computer systems and related technologies; 

— purchasing; 

— personnel services: classification services, staff relations and recruitment advice; 

— liaison with central agencies (e.g. preparation of Management Board submissions); 

— internal audit services; 

— mail handling within the Ontario Public Service. 

(b) Unless otherwise agreed to with the Ministry of Labour in writing, the Tribunal shall assume responsibility 
for, and make its own arrangements, in keeping with the provisions of Section 3(1) with respect to the 
following: 

— recruitment; 

— payroll, including IPPEBS input; 

— telephone installation and maintenance; 

— acquisition of professional services; 

— courier services; 

— public relations; 

— accounting and budget control systems and procedures; 

— mail handling external to the OPS; 

— forms design; 

— acquisition of furniture; 

— printing; 

— communications services; 

— library, research, archival functions; 

— facility and records security; 

— legal counsel; 

— inventory control; 

— reproduction equipment/operations. 

6. FINANCIAL 

(a) The Tribunal is funded directly as an administrative expense of the Workers' Compensation Board 
independent of the Consolidated Revenue Fund. 

(b) For purposes of this agreement, the Chief Executive Officer of the Tribunal is also to be regarded as the 
Chief Financial Officer of the Tribunal; and as such, is responsible for the maintenance of the Tribunal's 
accounts in accordance with government accounting policy, subject to the Workers' Compensation Act. 

(c) The Tribunal's financial year shall be from April 1 st to March 3 1 of the following year. 

(d) The Chairman of the Tribunal shall forward annually to the Minister a proposed budget for the next fiscal 
year which will outline: 

— the expected activity level for the various types and groups of appeals and the Tribunal's plans for 
handling its expected workload; 

— a calendarized expenditure estimate for the period which will indicate the following items: salaries and 
wages, employee benefits, transportation/communications services and supplies and equipment. 

(e) The budget shall be prepared by the Tribunal in accordance with the Government's annual budget format 
and in conformity with generally accepted budgeting and accounting standards and practices of the 
Government of Ontario. 

(0 The budget shall be submitted to the Minister prior to the end of the calendar year preceding the next fiscal 

year; that is, three months prior to the start of the next fiscal year, 
(g) The Minister will give his written approval to a final budget prior to the start of the Tribunal's fiscal year, 
(h) The Minister will inform the Workers' Compensation Board, in writing, of the Tribunal's approved annual 

budget and any subsequent changes as soon as possible after their approval, 
(i) The Tribunal's expenditures shall form part of the administrative costs of the Workers' Compensation 

Board and shall form part of its annual financial statement. 
G) The Tribunal shall make its expenditures in accordance with the approved budget; increases in expenditures 

beyond the approved levels shall not be made without prior notification to, and approval of, the Minister. 
(k) Increases in staff levels beyond the approved budget shall not be made without prior approval of the 

Minister. 

B-5 



(1) The Tribunal shall establish bank accounts necessary for its operations and shall keep a separate interest- 
bearing account for cash received from the Workers' Compensation Board, and separate accounts for 
payroll and benefits expenditures and, such other significant expenditure areas as, appellant and witness 
expenses, medical consulting fees, and a general expenditure account. 

(m) The Tribunal shall not accumulate large amounts of cash on hand and will transfer money from its cash 
account to its expenditure accounts as required on a day-to-day basis. 

(n) The Tribunal shall work closely with the Workers' Compensation Board to ensure that it has enough cash on 
hand at any time to meet its predicted expenditures, while not accumulating a significant cash surplus. To 
this end, the Workers' Compensation Board, with due consideration to the calendarized budget, shall 
transfer funds to the Tribunal on a monthly basis. The Tribunal will provide the Board with a detailed 
monthly statement of its expenditures and any significant upcoming expenditures which were not 
contemplated or represent a major deviation from the expected calendarized budget. The Board shall 
advance such monies on deposit to cover a month and a half of expenditures and that reimbursement of 
expenditures will be based on submission of the previous month's financial statements. 

7. OTHER FINANCIAL OR OPERATING RELATIONSHIPS 

(a) The Minister of Labour is responsible, with other Ministers as appropriate, for intergovernmental relations 
as they are required or may affect the Tribunal. 

(b) The Tribunal shall not enter into any agreement with respect to borrowing, loss funding or other similar 
financial transactions. In this respect, the Chairman is responsible for compliance with the Manual of the 
Office of the Treasury. 

(c) The cost of providing support services by the Ministry of Labour to the Tribunal under this Memorandum 
may be recovered for deposit in the Consolidated Revenue Fund from the Workers' Compensation Board. 
The Ministry will provide the Board with a calendarized annual estimate of the cost of these services. 

8. REPORTING 

(a) The Tribunal shall produce reports of a statistical, operational and financial nature during the fiscal year 
including: 

— monthly reports of actual versus planned expenditures and projections for the balance of the year; 

— monthly reports with regard to staffing levels and projected staffing levels; 

— monthly reports on the status of the Tribunal's caseload. 

(b) The Tribunal shall provide copies of the above reports to the Minister as required. 

(c) The Tribunal shall also provide the Minister with an Annual Report for purposes of public accountability. It 
shall reflect the operational plans and actual activities of the Tribunal for the past year, its financial 
expenditures for the period and its financial position at the end of the year. 

(d) The audited annual financial statements of the Tribunal, for purposes of public accountability, shall be 
prepared in accordance with generally accepted accounting principles and standards, and shall be audited by 
the Provincial Auditor or a reputable accounting firm at the end of each fiscal year. 

(e) The Tribunal shall comply with the requirements of the WCB to provide audited financial statements at the 
end of each calendar year of the Tribunal's operation. 

9. AUDIT 

(a) The Tribunal, as a Schedule I Agency of the Government, is subject to routine financial and operational 
audit according to procedures and policies of Government and the Ministry of Labour. 

(b) The Tribunal shall provide such information as may be required by the Provincial Auditor or the Ministry's 
Internal Auditors in the conduct of financial, management or EDP audits. 

10. SUNSET REVIEW 

The parties understand that the Minister is required to undertake a sunset review of the Tribunal in accordance 
with guidelines established by Management Board, and submit a report to Management Board by October 1, 1988. 



B-6 



WORKERS' COMPENSATION APPEALS TRIBUNAL 



SECOND REPORT 

APPENDIX C 

WEEKLY WORKLOAD ANALYSIS 



WEEKLY WORKLOAD ANALYSIS 

AS AT WE. October 2nd, 1987 



1 AWAITING INITIAL PROCESSING 

2 INTAKE PROCESSING - CASE IN PROGRESS 



SECTION 15 
SECTION 21 * 

SECTION 77 (note 7) 
SECTION 86o 



- WRITTEN 

- ORAL 



2 
25 



TOTAL CASES IN INTAKE 



3 TCO PROCESSING : 

CASES WAITING TO BE SORTED BY TCO; NOT SORTED 

CASES WAITING TO BE ASSIGNED TO INDIVIDUAL TCO: SORTED 

CASES WAITING TO BE ASSIGNED TO TRACK 3 : SORTED 



ASSIGNED CASES: 

- CD PREPARATION IN PROGRESS (Note 5) 

- UNABLE TO PROCEED -SCHEDULING STATUS "C 

- NOT HEARING READY 

- CD REQUIRED CASES ? (NOTE 1) 



218 
59 
65 

17 



TOTAL ASSIGNED 
TOTAL CASES IN TCO - PRE-HEARING 

4 HEARING READY CASES : 

TRANSMITTAL FORMS NOT SENT TO SCHEDULING (NOTE 2) 

5 SCHEDULING : 

ON HOLD IN SCHEDULING 

-2 WEEK WAITING PERIOD (H) 
CURRENT; IN PROGRESS (B) 
SCHEDULED CASES (D) :- 

OCTOBER/87 (4 weeks) 84 

S.77 (2 half days) 14 

NOVEMBER/87 60 

DECEMBER/87 33 

JANUARY/87 10 

TOTAL SCHEDULED (NOTE 3) 

TOTAL IN SCHEDULING 

6 *+ TOTAL ACTIVE PRE-HEARING WORKLOAD ** 

7 CASES ON HOLD 

UNSCHEDULABLE CASES IN SCHEDULING (E) 

PENSION CASES (IN SCHEDULING) 

PENSION CASES (SORTED BY TCO AND NOT ASSIGNED) 

PENSION CASES 

DORMANT 

8 ** TOTAL PRE-HEARING WORKLOAD ** 

9 TOTAL POST-HEARING WORKLOAD : (NOTE 4) 

CASES PENDING DECISIONS FROM VICE-CHAIRS 

: FINAL 
: INTERIM 

SUB-TOTAL 

CASES HEARD IN WHICH HEARING IS : 

COMPLETE ON HOLD 
RECESSED 

NO KNOWN STATUS 



** TOTAL POST-HEARING WORKLOAD 
10 POST DECISION CASES : 



SUB-TOTAL 



OMBUDSMAN'S REQUEST 
RECONSIDERATION (Note 6) 
JUDICIAL REVIEW 



+* TOTAL POST DECISION CASES 
TOTAL CASES IN 



* + 



TRIBUNAL 



27 



12 



49 

27 



11 

33 
27 



71 



359 



38 
195 



201 



117 
18 
99 

274 
56 



522 

3 

525 



157 
68 



233 



39 
19 

7 



115 



430 



23 



434 
1,002 



564 



1,566 



758 



65 
2,389 



•■See following page for explanatory notes 



C-1 



WEEKLY WORKLOAD ANALYSIS 

as at W.E. October 2, 1987 
Explanatory Notes 

1 . Tribunal Counsel Office (TCO) did not indicate if these cases require Case Description or not and they were not 
noted as ready for hearing. 

2. There are 23 cases indicated as hearing ready by TCO in which SCHEDULING has not received any transmittal 
forms. They are related to cases in which Case Descriptions had been completed in the last two weeks. 

3. The total scheduled cases of 201 does not include the following: 

RECONVENED CASES 

October 12 

November 6 

December 4 

January 1 

TOTAL 23 

*THESE CASES HAVE ALREADY BEEN INCLUDED IN THE POST-HEARING WORKLOAD UNDER 
"RECESSED" AND "COMPLETE/HOLD" HEARINGS. 

4. Please note that this category has been expanded to include cases which a hearing has begun but has not been 
completed, in order to give a better indication of the post-hearing workload. 

5. One hundred and three of the total two hundred and eighteen Case Descriptions in progress are PENSION 
cases. 

6. Five of the nineteen active Reconsideration applications have been assigned to Vice-Chairs and may result in a 
Reconsideration decision. 

7. The breakdown for the 49 cases as indicated by Intake have not been received for the week. 



C-2 



WORKERS' COMPENSATION APPEALS TRIBUNAL 



SECOND REPORT 

APPENDIX D 

GRAPH OF INPUT AND OUTPUT TRENDS 



Average Cases 
Per Month 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

INPUT and OUTPUT TRENDS 

(QUARTERLY AVERAGES) 



200 -- 

190 -■ 

180 -- 

170 -- 

160 -- 

150 -■ 

140 ■- 

130 -- 

120 ■- 

110 -- 



\ 



1986 



\ 



\ 



\ 



\ 



\ 



\ 



\ 



6 O O ^O ■•■ - O — 

Average Input 1 57y^onth 



o O O o o 



\ 



7f 



../ 



/ 



X — X — t — % r'- X — X — x — * — •» — « 



100 -. Average Hearir)gs and Non-Hearings /"*/ 

X; 



,y^- 




1987 



A--'-^-.^ 



r 

X — X -r-x — y. — X — » ^f^- A — X — X — 

Avepege 184/Month \ 
/ \ 

/ V 

/ \ \ 



y 



I 



\ \ 



Ave/ace Inpul, 1 Wjlonth 
Average 1 44/Month "^^ 



A-^ 



/ 



/ 



"^, 



Average 112/Month 



1st Qtr 2nd Qtr 3rd Qtr 4th Qtr 
1986 1986 1986 1986 



1st Qtr 2nd Qtr 3rd Qtr 
1987 1987 1987 



D-1 



WORKERS' COMPENSATION APPEALS TRIBUNAL 



SECOND REPORT 

APPENDIX E 

INCOMING CASELOAD STATISTICS 

1 . Monthly Breakdown of Incoming Cases 

2. Breakdown of Cases in 6-Month Bites 

3. Case Input by Type of Appeal 

4. Case Input by Type of Appeal (during 24-month period) 



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24 lonth Total 

400 9 

219 4 

123 2 

438 9 

544 12 

18 

53 1 

9 

53 1 

55 1 

209 4 

2,342 52 

4,463 10 


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Tear « Oct-86 
Total * 

287 t 19 
122 * 8 
44 t 1 

121 * 26 

352 » 25 

3 t 

24 t 4 

2 « 

5 » 1 

7 t 4 

157 t 3 

1,485 « 117 

2.609 t 214 


DSSCBIPTIOH 

IHPOT BY TYPE : 

S.86o 

S.15 

S.21 

S,77 

PeosioD 

CoiiutdtioQ 

Eipioyer Assessient 

Judicial Bevies 

OibudsiaD's Bequest 

BecoDsideration 

Ho Jurisdiction 

Entitleient & Other 

Total 



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E-1 



Workers' Compensation Appeals Tribunal 
Second Report 

BREAKDOWN ON INGOMINO GASES 
IN 6— MONTH BXTES 



For the 24 month period October 1, 1985 to September 30th, 1987 



DESC8IPTI0H 



24 Bonth Total 
% 



October 1985 

to 
March 1986 
(6 Bonths) 



April 1986 

to 

September 19f 

(6 aonths) 



October 1986 

to 
March 198T 
(6 aonths) 



April 1987 

to 

September 1987 

(6 aonths) 



INPOT BY TYPE ; (see note] 

s.eso 

S.15 

S.21 

S.77 

Pension 

CoBButation 

Eiployer Assessient 

Judicial Review 

OibudsBan's Request 

Reconsideration 

Ho Jurisdiction 

Entitleaent 4 Other 

Total 



400 


9.0? 


219 


4.95; 


123 


2.83; 


438 


9.8X 


544 


12.25; 


18 


0.45; 


53 


1.25; 


9 


0.2X 


53 


l,2!i 


55 


1,25; 


209 


4.75; 


2,342 


52.55; 



4,463 



1005; 



185 

72 

20 

20 

252 

2 

17 
1 



115 



1,692 



102 

50 

24 

101 

100 

1 

7 

1 

5 

7 

42 
477 

917 



74 

52 

32 

148 

109 

2 

22 
1 

12 

22 

29 

492 

995 



39 
45 
47 

169 

83 

13 

7 

6 

36 
26 
23 

365 

859 



Note: Please refer to Monthly Breakdown of Incoaing Cases 
chart for detail description. 



E-2 



"1 






Number of Appeals 



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E-3 



Workers' Compensation Appeals Tribunal 
Second Report 

Case Input by Type of Appeal 

Durinq 24 rrionth period 



Fr.tiM'"rr,fr,t ."j. Qth^r (58 5"^) 




S 77 (9.8?;) 



V 






* Post-Decision cases include reconsideration applications. 
Ombudsman's inquiries and judicial review cases. 



E-4 



WORKERS' COMPENSATION APPEALS TRIBUNAL 



SECOND REPORT 

APPENDIX F 

PRODUCTION STATISTICS 

1 . Monthly Production Statistics 

2. Monthly Current Caseload Statistics 

3. Summary of Current Caseload Statistics 

4. Case Disposition Analysis 

5. Breakdown of Non-Hearing Dispositions 





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1,631 

68 
165 
525 

758 
2,389 


31-Attg-87 

1,672 

69 
168 
498 

735 
2,407 


31-Jul-87 

1,606 

65 
145 
492 

702 
2,308 


30-Jun-87 

1,648 

59 
190 
457 

706 
2,354 


31-llay-87 

1,662 

73 
150 
465 

688 
2,350 


! N D E 
29-Apr-87 

1,645 

65 
135 
468 

668 
2,313 


S A T I 
31-Har-87 

1,668 

58 
111 
422 

591 
2,259 


— - A 
28-Feb-87 

1,684 

53 
128 
407 

588 
2,272 


31-Jan-87 

1,706 

52 

92 

384 

528 
2,234 


31-Dec-86 

1,670 

60 

76 

346 

482 
2,152 


30-Hoy-86 

1,600 

67 

60 

400 

527 
2,127 


31-0ct-86 

1,599 

72 

51 

364 

487 
2,086 


As at 

End of 

Previous 

Year 
30-Sep-86 

1,501 

75 
125 
450 

650 
2,151 


CDBBENT CASELOAD 

CASES AT PBE-HEABIBG STfCE 

POST-BEABIHG CASES : 

BECESSED 

COHPLETED BUT OH BOLD 

BEADY-TO-HBITE DECISIOH 

TOTAL CASES AT POST-BEABIHG STAGE 
TOTAL CASELOAD 



F-2 



Workers' Compensation Appeals Tribunal 
Second Report 



SOMMARY OB* 
GORRENT CASELOAD STATISTICS 



As at end of Reporting Period 
September 30, 1987 



Incoming cases over 24 months 
Output of cases over 24 months 



4,463 
2,075 



Current caseload 

at pre -hearing stage 

at post-hearing stage 

Total current caseload 



1,631 
758 



2,389 



F-3 



Workers' Compensation Appeals Tribunal 
Second Report 



Case Disposition Analysis 

During 24 rrionth f/eriod 




Requiring hearing (69 2?i) y\^-''^'/''/'^-\.. 

^ y' y y' y X / 



F-4 



Workers' Compensation Appeals Tribunal 
Second Report 



Breakdown of Non — Hearing Dispositions 

During 24 month period 



CASE DIRECTION PANEL (0 3%) 



NO JURISDICTION (27,5%) A \ '' 



PO 



OTHER (1.7%) 
ST- DECISION CASES * (5.2%) X'^^/^C^'/Z 

SETTLEMENT (6.4%) </A\ 



OTHER -DORMANT (9. 3%) 




CASES WITHDRAWN (49 6%) 



* Post-Decision cases include reconsideration applications. 
Ombudsman's inquiries and judicial review cases. 



F-5 



WORKERS' COMPENSATION APPEALS TRIBUNAL 



SECOND REPORT 

APPENDIX G 

WORKER AND EMPLOYER REPRESENTATION PROFILES 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

Employer Representation Profile 



. of Cases 


% of Total 


33 


1% 


11 


0% 


49 


2% 


472 


19% 


54 


2(^0 


188 


8% 


616 


25% 


184 


7% 


9 


0% 


29 


1% 


861 


35% 


2,462 


100% 


1,995 




4,457 





Employer : 

Claims Officer 

Consultant 

Office of the Employer Advisor 

Lawyer 

Manager 

Personnel Department 

Representative* 

Safety Officer 

WCB 

Other 

None 

Sub-total 
Unknown (note) 

TOTAL 



NOTE: These are cases in which the representation of the employer is unknown due to a lack of internal 
administrative documentation prior to the installation of present procedures. The Tribunal believes the 
breakdown within this grouping would accord roughly with the grouping shown for the cases for which the 
data was kept. 

*These are representatives who did not appear to fall within any of the other categories. 

WORKERS' COMPENSATION APPEALS TRIBUNAL 

Worker Representation Profile 



Worker : 

Consultant 

Lawyer** 

MP / MPP or their staff 

Representative* 

Union 

WCB 

Office of the Worker Advisor 

Other 

None 

Sub-total 
Unknown (note) 

TOTAL 



No. of Cases 


% of Total 


43 


1% 


739 


21% 


159 


5% 


900 


26% 


563 


16% 


37 


1% 


647 


19% 


6 


0% 


357 


10% 



3,451 



1,006 



4,457 



100% 



NOTE: These are cases in which the representation of the worker is unknown due to a lack of internal 
administrative documentation prior to the installation of present procedures. The Tribunal believes the 
breakdown within this grouping would accord roughly with the grouping shown for the cases for which the 
data was kept. 

**Includes clinic staff lawyers. 

*These are representatives who did not appear to fall within any of the other categories. 



G-1 



WORKERS' COMPENSATION APPEALS TRIBUNAL 



SECOND REPORT 

APPENDIX H 

FINANCIAL STATEMENTS 

FOR FISCAL PERIOD 
(APRIL 1, 1986 to MARCH 30, 1987) 

1. Summary Statement of Expenditure 

2. Statement of Expenditures 



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Workers' Compensation Appeals Tribunal 

505 University Avenue, 7th Floor, Toronto, Ont. M5G 1X4 
Telephone: (416) 598-4638